CERTIORARI TO THE SUPREME COURT OF ARIZONA.

Norman M. Littell argued the cause for petitioners. With him on the brief was Frederick Bernays Wiener.

Wm. W. Stevenson argued the cause for respondent. With him on the brief was W. Dean Nutting.

Solicitor General Rankin, Assistant Attorney General Morton and Roger P. Marquis field a brief for the United States, as amicus curiae, at the invitation of the Court, 356 U. S. 930, urging reversal.

MR. JUSTICE BLACK delivered the opinion of the Court.

Respondent, who is not an Indian, operates a general store in Arizona on the Navajo Indian Reservation under a license required by federal statute.^[1] He brought this [218] action in the Superior Court of Arizona against petitioners, a Navajo Indian and his wife who live on the Reservation, to collect for goods sold them there on credit. Over petitioners' motion to dismiss on the ground that jurisdiction lay in the tribal court rather than in the state court, judgment was entered in favor of respondent. The Supreme Court of Arizona affirmed, holding that since no Act of Congress expressly forbids their doing so Arizona courts are free to exercise jurisdiction over civil suits by non-Indians against Indians though the action arises on an Indian reservation. 83 Ariz. 241, 319 P. 2d 998. Because this was a doubtful determination of the important question of state power over Indian affairs, we granted certiorari. 356 U. S. 930.

Originally the Indian tribes were separate nations within what is now the United States. Through conquest and treaties they were induced to give up complete independence and the right to go to war in exchange for federal protection, aid, and grants of land. When the lands granted lay within States these governments sometimes sought to impose their laws and courts on the Indians. Around 1830 the Georgia Legislature extended its laws to the Cherokee Reservation despite federal treaties with the Indians which set aside this land for them.^[2] The Georgia statues forbade the Cherokees from enacting laws or holding courts and prohibited outsiders from being on the Reservation except with permission of the State Governor. The constitutionality of these laws was tested in Worcester v. Georgia, 6 Pet. 515, when the State sought to punish [219] a white man, licensed by the Federal Government to practice as a missionary among the Cherokees, for his refusal to leave the Reservation. Rendering one of his most courageous and eloquent opinions, Chief Justice Marshall held that Georgia's assertion of power was invalid. "The Cherokee nation . . . is a distinct community, occupying its own territory . . . in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States." 6 Pet., at 561.

Despite bitter criticism and the defiance of Georgia which refused to obey this Court's mandate in Worcester^[3] the board principles of that decision came to be accepted as law.^[4] Over the years this Court has modified these principles in cases where essential tribal relations were not involved and where the rights of Indians would not be jeopardized, but the basic policy of Worcester has remained. Thus, suits by Indians against outsiders in state courts have been sanctioned. See Felix v. Patrick, [220] 145 U. S. 317, 332; United States v. Candelaria, 271 U. S. 432. See also Harrison v. Laveen, 67 Ariz. 337, 196 P. 2d 456. And state courts have been allowed to try non-Indians who committed crimes against each other on a reservation. E. g., New York ex rel. Ray v. Martin, 326 U. S. 496. But if the crime was by or against an Indian, tribal jurisdiction or that expressly conferred on other courts by Congress has remained exclusive.^[5] Donnelly v. United States, 228 U. S. 243, 269-272; Williams v. United States, 327 U. S. 711. Essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them. Cf. Utah & Northern Railway v. Fisher, 116 U. S. 28.

Congress has also acted consistently upon the assumption that the States have no power to regulate the affairs of Indians on a reservation. To assure adequate government of the Indian tribes it enacted comprehensive statutes in 1834 regulating trade with Indians and organizing a Department of Indian Affairs. 4 Stat. 729, 735. Not satisfied solely with centralized government of Indians, it encouraged tribal governments and courts to become stronger and more highly organized. See, e. g., the Wheeler-Howard Act, §§ 16, 17, 48 Stat. 987, 988, 25 U. S. C. §§ 476, 477. Congress has followed a policy calculated eventually to make all Indians full-fledged participants in American society. This policy contemplates criminal and civil jurisdiction over Indians by any State ready to assume the burdens that go with it as soon as the educational and economic status of the Indians permits the change without disadvantage to [221] them. See H. R. Rep. No. 848, 83d Cong., 1st Sess. 3, 6, 7 (1953). Significantly, when Congress has wished the States to exercise this power it has expressly granted them the jurisdiction which Worcester v. Georgia had denied.^[6]

No departure from the policies which have been applied to other Indians is apparent in the relationship between the United States and the Navajos. On June 1, 1868, a treaty was signed between General William T. Sherman, for the United States, and numerous chiefs and headmen of the "Navajo nation or tribe of Indians."^[7] At the time this document was signed the Navajos were an exiled people, forced by the United States to live crowded together on a small piece of land on the Pecos River in eastern New Mexico, some 300 miles east of the area they had occupied before the coming of the white man. In return for their promises to keep peace, this treaty "set apart" for "their permanent home" a portion of what had been their native country, and provided that no one, except United States Government personnel, was to enter the reserved area. Implicit in these treaty terms, as it was in the treaties with the Cherokees involved in Worcester v. Georgia, was the understanding that the internal affairs of the Indians remained exclusively within [222] the jurisdiction of whatever tribal government existed. Since then, Congress and the Bureau of Indian Affairs have assisted in strengthening the Navajo tribal government and its courts. See the Navajo-Hopi Rehabilitation Act of 1950, § 6, 64 Stat. 46, 25 U. S. C. § 636; 25 CFR §§ 11.1 through 11.87NH. The Tribe itself has in recent years greatly improved its legal system through increased expenditures and better-trained personnel. Today the Navajo Courts of Indian Offenses exercise broad criminal and civil jurisdiction which covers suits by outsiders against Indian defendants.^[8] No Federal Act has given state courts jurisdiction over such controversies.^[9] In a general statute Congress did express its willingness to have any State assume jurisdiction over reservation Indians if the State Legislature or the people vote affirmatively to accept such responsibility.^[10] To date, Arizona has not [223] accepted jurisdiction, possibly because the people of the State anticipate that the burdens accompanying such power might be considerable.^[11]

There can be no doubt that to allow the exercise of state jurisdiction here would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves. It is immaterial that respondent is not an Indian. He was on the Reservation and the transaction with an Indian took place there. Cf. Donnelly v. United States, supra; Williams v. United States, supra. The cases in this Court have consistently guarded the authority of Indian governments over their reservations. Congress recognized this authority in the Navajos in the Treaty of 1868, and has done so ever since. If this power is to be taken away from them, it is for Congress to do it. Lone Wolf v. Hitchcock, 187 U. S. 553, 564-566.

Reversed.

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[1] 31 Stat. 1066, as amended, 32 Stat. 1009, 25 U. S. C. § 262, provides: "Any person desiring to trade with the Indians on any Indian reservation shall, upon establishing the fact, to the satisfaction of the Commissioner of Indian Affairs, that he is a proper person to engage in such trade, be permitted to do so under such rules and regulations as the Commissioner of Indian Affairs may prescribe for the protection of said Indians."

[2] The Georgia laws are set out extensively in Worcester v. Georgia, 6 Pet. 515, 521-528. The principal treaties involved are found at 7 Stat. 18, 39.

[3] For interesting accounts of this episode in the struggle for power between state and federal governments see IV Beveridge, The Life of John Marshall, 539-552; I Warren, The Supreme Court in United States History, c. 19. See also Cherokee Nation v. Georgia, 5 Pet. 1.

[4] See The Kansas Indians, 5 Wall. 737; Ex parte Crow Dog, 109 U. S. 556; United States v. Kagama, 118 U. S. 375; United States v. Forness, 125 F. 2d 928; Iron Crow v. Oglala Sioux Tribe, 231 F. 2d 89; Begay v. Miller,70 Ariz. 380, 222 P. 2d 624; Cohen, Federal Indian Law (Revision by the United States Interior Department 1958); 55 Decisions of the Department of the Interior 56-64.

The Federal Government's power over Indians is derived from Art. I, § 8, cl. 3, of the United States Constitution, Perrin v. United States, 232 U. S. 478, and from the necessity of giving uniform protection to a dependent people. United States v. Kagama, supra.

[5] For example, Congress has granted to the federal courts exclusive jurisdiction upon Indian reservations over 11 major crimes. And non-Indians committing crimes against Indians are now generally tried in federal courts. See 18 U. S. C. §§ 437-439, 1151-1163; Cohen, op. cit. supra, note 4, at 307-326.

[6] See, e. g., 62 Stat. 1224, 64 Stat. 845, 25 U. S. C. §§ 232, 233 (1952) (granting broad civil and criminal jurisdiction to New York); 18 U. S. C. § 1162, 28 U. S. C. § 1360 (granting broad civil and criminal jurisdiction to California, Minnesota, Nebraska, Oregon, and Wisconsin). The series of statutes granting extensive jurisdiction over Oklahoma Indians to state courts are discussed in Cohen, op. cit. supra, note 4, at 985-1051.

[7] 15 Stat. 667. In 16 Stat. 566 (1871), Congress declared that no Indian tribe or nation within the United States should thereafter be recognized as an independent power with whom the United States could execute a treaty but provided that this should not impair the obligations of any treaty previously ratified. Thus the 1868 treaty with the Navajos survived this Act.

[8] Young, The Navajo Yearbook (1955), 165, 201; id. (1957), 107, 110.

[9] In the 1949 Navajo-Hopi Rehabilitation Bill, S. 1407, 81st Cong., 1st Sess., setting up a 10-year program of capital and other improvements on the Reservation, Congress provided for concurrent state, federal and tribal jurisdiction. President Truman vetoed the bill because he felt that subjecting the Navajo and Hopi to state jurisdiction was undesirable in view of their illiteracy, poverty and primitive social concepts. He was also impressed by the fact that the Indians vigorously opposed the bill. 95 Cong. Rec. 14784-14785. After the objectionable features of the bill were deleted it was passed again and became law. 64 Stat. 44, 25 U. S. C. §§ 631-640.

[10] Act of Aug. 15, 1953, c. 505, §§ 6, 7, 67 Stat. 590, provides as follows: "Notwithstanding the provisions of any Enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil and criminal jurisdiction in accordance with the provisions of this Act: Provided,That the provisions of this Act shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes as the case may be.

". . . The consent of the United States is hereby given to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as provided for in this Act, to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof."

Arizona has an express disclaimer of jurisdiction over Indian lands in its Enabling Act, § 20, 36 Stat. 569, and in Art. XX, Fourth, of its Constitution. Cf. Draper v. United States, 164 U. S. 240.

[11] See H. R. Rep. No. 848, 83d Cong., 1st Sess. 3, 7 (1953); Secretary of Interior, Annual Report (1955), 247-248; id. (1956), 215-216; id. (1957), 253-254.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

[546] Urban L. Roth, Special Assistant Attorney General of Montana, argued the cause for petitioners. With him on the briefs were Michael T. Greely, Attorney General, Clayton R. Herron and F. Woodside Wright, Special Assistant Attorneys General, James E. Seykora, and Douglas Y. Freeman.

Deputy Solicitor General Claiborne argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Moorman, Harlon L. Dalton, Robert L. Klarquist, and Steven E. Carroll.

Thomas J. Lynaugh argued the cause for respondent Crow Tribe of Indians. With him on the brief was Charles A. Hobbs.^[1]

[547] JUSTICE STEWART delivered the opinion of the Court.

This case concerns the sources and scope of the power of an Indian tribe to regulate hunting and fishing by non-Indians on lands within its reservation owned in fee simple by non-Indians. Relying on its purported ownership of the bed of the Big Horn River, on the treaties which created its reservation, and on its inherent power as a sovereign, the Crow Tribe of Montana claims the authority to prohibit all hunting and fishing by nonmembers of the Tribe on non-Indian property within reservation boundaries. We granted certiorari, 445 U. S. 960, to review a decision of the United States Court of Appeals for the Ninth Circuit that substantially upheld this claim.

I

The Crow Indians originated in Canada, but some three centuries ago they migrated to what is now southern Montana. In the 19th century, warfare between the Crows and several other tribes led the tribes and the United States to sign the First Treaty of Fort Laramie of 1851, in which the [548] signatory tribes acknowledged various designated lands as their respective territories. See 11 Stat. 749 and 2 C. Kappler, Indian Affairs: Laws and Treaties 594 (1904) (herein-after Kappler). The treaty identified approximately 38.5 million acres as Crow territory and, in Article 5, specified that, by making the treaty, the tribes did not "surrender the privilege of hunting, fishing, or passing over" any of the lands in dispute. In 1868, the Second Treaty of Fort Laramie established a Crow Reservation of roughly 8 million acres, including land through which the Big Horn River flows. 15 Stat. 649. By Article II of the treaty, the United States agreed that the reservation "shall be . . . set apart for the absolute and undisturbed use and occupation" of the Crow Tribe, and that no non-Indians except agents of the Government "shall ever be permitted to pass over, settle upon, or reside in" the reservation.

Several subsequent Acts of Congress reduced the reservation to slightly fewer than 2.3 million acres. See 22 Stat. 42 (1882); § 31, 26 Stat. 1039-1040 (1891); ch. 1624, 33 Stat. 352 (1904); ch. 890, 50 Stat. 884 (1937). In addition, the General Allotment Act of 1887, ch. 119, 24 Stat. 388, and the Crow Allotment Act of 1920, 41 Stat. 751, authorized the issuance of patents in fee to individual Indian allottees within the reservation. Under these Acts, an allottee could alienate his land to a non-Indian after holding it for 25 years. Today, roughly 52 percent of the reservation is allotted to members of the Tribe and held by the United States in trust for them, 17 percent is held in trust for the Tribe itself, and approximately 28 percent is held in fee by non-Indians. The State of Montana owns in fee simple 2 percent of the reservation, the United States less than 1 percent.

Since the 1920's, the State of Montana has stocked the waters of the reservation with fish, and the construction of a dam by the United States made trout fishing in the Big Horn River possible. The reservation also contains game, some of it stocked by the State. Since the 1950's, the Crow Tribal [549] Council has passed several resolutions respecting hunting and fishing on the reservation, including Resolution No.74-05, the occasion for this lawsuit. That resolution prohibits hunting and fishing within the reservation by anyone who is not a member of the Tribe. The State of Montana, however, has continued to assert its authority to regulate hunting and fishing by non-Indians within the reservation.

On October 9, 1975, proceeding in its own right and as fiduciary for the Tribe, the United States endeavored to resolve the conflict between the Tribe and the State by filing the present lawsuit. The plaintiff sought (1) a declaratory judgment quieting title to the bed of the Big Horn River in the United States as trustee for the Tribe, (2) a declaratory judgment establishing that the Tribe and the United States have solve authority to regulate hunting and fishing within the reservation, and (3) an injunction requiring Montana to secure the permission of the Tribe before issuing hunting or fishing licenses for use within the reservation.

The District Court denied the relief sought. 457 F. Supp. 599. In determining the ownership of the river, the court invoked the presumption that the United States does not intend to divest itself of its sovereign rights in navigable waters and reasoned that here, as in United States v. Holt State Bank, 270 U. S. 49, the language and circumstances of the relevant treaties were insufficient to rebut the presumption. The court thus concluded that the bed and banks of the river had remained in the ownership of the United States until they passed to Montana on its admission to the Union. As to the dispute over the regulation of hunting and fishing, the court found that "[i]mplicit in the Supreme Court's decision in Oliphant v. Suquamish Indian Tribe, 435 U. S. 191,] is the recognition that Indian tribes do not have the power, nor do they have the authority, to regulate non-Indians unless so granted by an act of Congress." 457 F. Supp., at 609. Because no treaty or Act of Congress gave the Tribe authority to regulate hunting or fishing by non-Indians, the court held [550] that the Tribe could not exercise such authority except by granting or withholding authority to trespass on tribal or Indian land. All other authority to regulate non-Indian hunting and fishing resided concurrently in the State of Montana and, under 18 U. S. C. § 1165 (which makes it a federal offense to trespass on Indian land to hunt or fish without permission), the United States.

The Court of Appeals reversed the judgment of the District Court. 604 F. 2d 1162. Relying on its opinion in United States v. Finch, 548 F. 2d 822, vacated on other grounds, 433 U. S. 676, the appellate court held that, pursuant to the treaty of 1868, the bed and banks of the river were held by the United States in trust for the Tribe. Relying on the treaties of 1851 and 1868, the court held that the Tribe could regulate hunting and fishing within the reservation by nonmembers, although the court noted that the Tribe could not impose criminal sanctions on those nonmembers. The court also held, however, that the two Allotment Acts implicitly deprived the Tribe of the authority to prohibit hunting and fishing on fee lands by resident nonmember owners of those lands. Finally, the court held that nonmembers permitted by the Tribe to hunt or fish within the reservation remained subject to Montana's fish and game laws.

II

The respondents seek to establish a substantial part of their claim of power to control hunting and fishing on the reservation by asking us to recognize their title to the bed of the Big Horn River.^[2] The question is whether the United States [551] conveyed beneficial ownership of the riverbed to the Crow Tribe by the treaties of 1851 or 1868, and therefore continues to hold the land in trust for the use and benefit of the Tribe, or whether the United States retained ownership of the riverbed as public land which then passed to the State of Montana upon its admission to the Union. Choctaw Nation v. Oklahoma, 397 U. S. 620, 627-628.

Though the owners of land riparian to nonnavigable streams may own the adjacent riverbed, conveyance by the United States of land riparian to a navigable river carries no interest in the riverbed. Packer v. Bird, 137 U. S. 661, 672; Railroad Co. v. Schurmeir, 7 Wall. 272, 289; 33 U. S. C. § 10; 43 U. S. C. § 931. Rather, the ownership of land under navigable waters is an incident of sovereignty. Martin v. Waddell, 16 Pet. 367, 409-411. As a general principle, the Federal Government holds such lands in trust for future States, to be granted to such States when they enter the Union and assume sovereignty on an "equal footing" with the established States. Pollard's Lessee v. Hagan, 3 How. 212, 222-223, 229. After a State enters the Union, title to the land is governed by state law. The State's power over the beds of navigable waters remains subject to only one limitation: the paramount power of the United States to ensure that such waters remain free to interstate and foreign commerce. United States v. Oregon, 295 U. S. 1, 14. It is now established, however, that Congress may sometimes convey lands below the high-water mark of a navigable water.

"[and so defeat the title of a new State,] in order to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several States, or to carry out other public purposes appropriate to the objects for which the United States hold the Territory." Shively v. Bowlby, 152 U. S. 1, 48. [552] But because control over the property underlying navigable waters is so strongly identified with the sovereign power of government, United States v. Oregon, supra, at 14, it will not be held that the United States has conveyed such land except because of "some international duty or public exigency." United States v. Holt State Bank, 270 U. S., at 55. See also Shively v. Bowlby, supra, at 48. A court deciding a question of title to the bed of a navigable water must, therefore, begin with a strong presumption against conveyance by the United States, United States v. Oregon, supra, at 14, and must not infer such a conveyance "unless the intention was definitely declared or otherwise made plain," United States v. Holt State Bank, supra, at 55, or was rendered "in clear and especial words," Martin v. Waddell, supra, at 411, or "unless the claim confirmed in terms embraces the land under the waters of the stream," Packer v. Bird, supra, at 672.^[3]

In United States v. Holt State Bank, supra, this Court applied these principles to reject an Indian Tribe's claim of title to the bed of a navigable lake. The lake lay wholly within the boundaries of the Red Lake Indian Reservation, which had been created by treaties entered into before Minnesota joined the Union. In these treaties the United States promised to "set apart and withhold from sale, for the use of" the Chippewas, a large tract of land, Treaty of Sept. 30, 1854, 10 Stat. 1109, and to convey "a sufficient quantity of land for the permanent homes" of the Indians, Treaty of Feb. 22, 1855, 10 Stat. 1165. See Minnesota v. Hitchcock, 185 U. S. 373, 389.^[4] The Court concluded that there was nothing in the treaties "which even approaches a grant of rights in lands underlying navigable waters; nor anything evincing a purpose [553] to depart from the established policy . . . of treating such lands as held for the benefit of the future State." United States v. Holt State Bank, 270 U. S., at 58-59. Rather, "[t]he effect of what was done was to reserve in a general way for the continued occupation of the Indians what remained of their aboriginal territory." Id., at 58.

The Crow treaties in this case, like the Chippewa treaties in Holt State Bank, fail to overcome the established presumption that the beds of navigable waters remain in trust for future States and pass to the new States when they assume sovereignty. The 1851 treaty did not by its terms formally convey any land to the Indians at all, but instead chiefly represented a covenant among several tribes which recognized specific boundaries for their respective territories. Treaty of Fort Laramie, 1851, Art. 5, 2 Kappler 594-595. It referred to hunting and fishing only insofar as it said that the Crow Indians "do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described," a statement that had no bearing on ownership of the riverbed. By contrast, the 1868 treaty did expressly convey land to the Crow Tribe. Article II of the treaty described the reservation land in detail^[5] and stated that such land would be "set apart for the absolute and undisturbed use and occupation of the Indians herein named . . . ." Second Treaty of Fort Laramie, May 7, 1868, Art, II, 15 Stat. 650. The treaty then stated:

"[T]he United States now solemnly agrees that no persons, except those herein designated and authorized to [554] do so, and except such officers, agents, and employes of the Government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law, shall ever be permitted to pass over, settle upon, or reside in the territory described in this article for the use of said Indians . . . ." Ibid.

Whatever property rights the language of the 1868 treaty created, however, its language is not strong enough to overcome the presumption against the sovereign's conveyance of the riverbed. The treaty in no way expressly referred to the riverbed, Packer v. Bird, 137 U. S., at 672, nor was an intention to convey the riverbed expressed in "clear and especial words," Martin v. Waddell, 16 Pet., at 411, or "definitely declared or otherwise made very plain," United States v. Holt State Bank, 270 U. S., at 55. Rather, as in Holt, "[t]he effect of what was done was to reserve in a general way for the continued occupation of the Indians what remained of their aboriginal territory." Id., at 58.

Though Article 2 gave the Crow Indians the sole right to use and occupy the reserved land, and, implicitly, the power to exclude others from it, the respondents' reliance on that provision simply begs the question of the precise extent of the conveyed lands to which this exclusivity attaches. The mere fact that the bed of a navigable water lies within the boundaries described in the treaty does not make the riverbed part of the conveyed land, especially when there is no express reference to the riverbed that might overcome the presumption against its conveyance. In the Court of Appeals' Finch decision, on which recognition of the Crow Tribe's title to the riverbed rested in this case, that court construed the language of exclusivity in the 1868 treaty as granting to the Indians all the lands, including the riverbed, within the described boundaries. United States v. Finch, 548 F. 2d, at 829. Such a construction, however, cannot survive examination. [555] As the Court of Appeals recognized, ibid., and as the respondents concede, the United States retains a navigational easement in the navigable waters lying within the described boundaries for the benefit of the public, regardless of who owns the riverbed. Therefore, such phrases in the 1868 treaty as "absolute and undisturbed use and occupation" and "no persons, except those herein designated . . . shall ever be permitted," whatever they seem to mean literally, do not give the Indians the exclusive right to occupy all the territory within the described boundaries. Thus, even if exclusivity were the same as ownership, the treaty language establishing this "right of exclusivity" could not have the meaning that the Court of Appeals ascribed to it.^[6]

[556] Moreover, even though the establishment of an Indian reservation can be an "appropriate public purpose" within the meaning of Shively v. Bowlby, 152 U. S., at 48, justifying a congressional conveyance of a riverbed, see, e. g., Alaska Pacific Fisheries v. United States, 248 U. S. 78, 85, the situation of the Crow Indians at the time of the treaties presented no "public exigency" which would have required Congress to depart from its policy of reserving ownership of beds under navigable waters for the future States. See Shively v. Bowlby, supra, at 48. As the record in this case shows, at the time of the treaty the Crows were a nomadic tribe dependent chiefly on buffalo, and fishing was not important to their diet or way of life. 1 App. 74. Cf., Alaska Pacific Fisheries v. United States, supra, at 88; Skokomish Indian Tribe v. France, 320 F. 2d 205, 212 (CA9).

For these reasons, we conclude that title to the bed of the Big Horn River passed to the State of Montana upon its [557] admission into the Union, and that the Court of Appeals was in error in holding otherwise.

III

Though the parties in this case have raised broad questions about the power of the Tribe to regulate hunting and fishing by non-Indians on the reservation, the regulatory issue before us is a narrow one. The Court of Appeals held that the Tribe may prohibit nonmembers from hunting or fishing on land belonging to the Tribe or held by the United States in trust for the Tribe, 604 F. 2d, at 1165-1166, and with this holding we can readily agree. We also agree with the Court of Appeals that if the Tribe permits nonmembers to fish or hunt on such lands, it may condition their entry by charging a fee or establishing bag and creel limits. Ibid. What remains is the question of the power of the Tribe to regulate non-Indian fishing and hunting on reservation land owned in fee by nonmembers of the Tribe. The Court of Appeals held that, with respect to fee-patented lands, the Tribe may regulate, but may not prohibit, hunting and fishing by non-members resident owners or by those, such as tenants or employees, whose occupancy is authorized by the owners. Id., at 1169. The court further held that the Tribe may totally prohibit hunting and fishing on lands within the reservation owned by non-Indians who do not occupy that land. Ibid.

The Court of Appeals found two sources for this tribal regulatory power: the Crow treaties, "augmented" by 18 U. S. C. § 1165, and "inherent" Indian sovereignty. We believe that neither source supports the court's conclusion.

A

The purposes of the 1851 treaty were to assure safe passage for settlers across the lands of various Indian Tribes; to compensate the Tribes for the loss of buffalo, other game animals, timber, and forage; to delineate tribal boundaries; to promote intertribal peace; and to establish a way of identifying [558] Indians who committed depredations against non-Indians. As noted earlier, the treaty did not even create a reservation, although it did designate tribal lands. See Crow Tribe v. United States, 151 Ct. Cl. 281, 285-286, 289, 292, 293, 284 F. 2d 361, 364, 366, 368. Only Article 5 of that treaty referred to hunting and fishing, and it merely provided that the eight signatory tribes "do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described." 2 Kappler 595.^[7] The treaty nowhere suggested that Congress intended to grant authority to the Crow Tribe to regulate hunting and fishing by nonmembers on nonmember lands. Indeed, the Court of Appeals acknowledged that after the treaty was signed non-Indians, as well as members of other Indian tribes, undoubtedly hunted and fished within the treaty-designated territory of the Crows. 604 F. 2d. at 1167.

The 1868 Fort Laramie Treaty, 15 Stat. 649, reduced the size of the Crow territory designated by the 1851 treaty. Article II of the treaty established a reservation for the Crow Tribe and provided that it be "set apart for the absolute and undisturbed use and occupation of the Indians herein named, and for such other friendly tribes or individual Indians as from time to time they may be willing, with the consent of the United States, to admit amongst them . . . ." (emphasis added) and that "the United States now solemnly agrees that no persons, except those herein designated and authorized so to do . . . shall ever be permitted to pass over, settle upon, or reside in the territory described in this article for the use of said Indians . . . ." The treaty, therefore, obligated the United States to prohibit most non-Indians from residing on or passing through reservation lands used and occupied by the Tribe, and, thereby, arguably conferred upon the Tribe [559] the authority to control fishing and hunting on those lands.^[8] But that authority could only extend to land on which the Tribe exercises "absolute and undisturbed use and occupation." And it is clear that the quantity of such land was substantially reduced by the allotment and alienation of tribal lands as a result of the passage of the General Allotment Act of 1887, 24 Stat. 388, as amended, 25 U. S. C. § 331 et seq., and the Crow Allotment Act of 1920, 41 Stat. 751.^[9] If the 1868 treaty created tribal power to restrict or prohibit non-Indian hunting and fishing on the reservation, that power cannot apply to lands held in fee by non-Indians.^[10]

[560] In Puyallup Tribe v. Washington Game Dept., 433 U. S. 165 (Puyallup III), the relevant treaty included language virtually identical to that in the 1868 Treaty of Fort Laramie. The Puyallup Reservation was to be "set apart, and, so far [561] as necessary, surveyed and marked out for their exclusive use . . . [and no] white man [was to] be permitted to reside upon the same without permission of the tribe . . . ." See id., at 174. The Puyallup Tribe argued that those words amounted to a grant of authority to fish free of state interference. But this Court rejected that argument, finding, in part, that it "clashe[d] with the subsequent history of the reservation . . .," ibid., notably two Acts of Congress under which the Puyallups alienated, in fee simple, the great majority of the lands in the reservation, including all the land abutting the Puyallup River. Thus, "[n]either the Tribe nor its members continue to hold Puyallup River fishing grounds for their `exclusive use.'" Ibid. Puyallup III indicates, therefore, that treaty rights with respect to reservation lands must be read in light of the subsequent alienation of those lands. Accordingly, the language of the 1868 treaty provides no support for tribal authority to regulate hunting and fishing on land owned by non-Indians.

The Court of Appeals also held that the federal trespass statute, 18 U. S. C. § 1165, somehow "augmented" the Tribe's regulatory powers over non-Indian land. 604 F. 2d, at 1167. If anything, however, that statute suggests the absence of such authority, since Congress deliberately excluded fee-patented lands from the statute's scope. The statute provides:

"Whoever, without lawful authority or permission, willfully and knowingly goes upon any land that belongs to any Indian or Indian tribe, band, or group and either are held by the United States in trust or are subject to a restriction against alienation imposed by the United States, or upon any lands of the United States that are reserved for Indian use, for the purpose of hunting, trapping, or fishing thereon, or for the removal of game, peltries, or fish therefrom, shall be fined . . . ."

The statute is thus limited to lands owned by Indians, held in trust by the United States for Indians, or reserved for use [562] by Indians.^[11] If Congress had wished to extend tribal jurisdiction to lands owned by non-Indians, it could easily have done so by incorporating in § 1165 the definition of "Indian country" in 18 U. S. C. § 1151: "all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation." Indeed, a Subcommittee of the House Committee on the Judiciary proposed that this be done. But the Department of the Interior recommended against doing so in a letter dated May 23, 1958. The Department pointed out that a previous congressional Report, H. R. Rep. No. 2593, 85th Cong., 2d Sess. (1958),^[12] had made clear that the bill contained no implication that it would apply to land other than that held or controlled by Indians or the United States.^[13] [563] The Committee on the Judiciary then adopted the present language, which does not reach fee-patented lands within the boundaries of an Indian reservation.

B

Beyond relying on the Crow treaties and 18 U. S. C. § 1165 as source for the Tribe's power to regulate non-Indian hunting and fishing on non-Indian lands within the reservation, the Court of Appeals also identified that power as an incident of the inherent sovereignty of the Tribe over the entire Crow Reservation. 604 F. 2d, at 1170. But "inherent sovereignty" is not so broad as to support the application of Resolution No. 74-05 to non-Indian lands.

This Court most recently reviewed the principles of inherent sovereignty in United States v. Wheeler, 435 U. S. 313. In that case, noting that Indian tribes are "unique aggregations possessing attributes of sovereignty over both their members and their territory," id., at 323, the Court upheld the power of a tribe to punish tribal members who violate tribal criminal laws. But the Court was careful to note that, through their original incorporation into the United States as well as through specific treaties and statutes, the Indian tribes have lost many of the attributes of sovereignty. Id., [564] at 326. The Court distinguished between those inherent powers retained by the tribes and those divested:

"The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe. . . .

These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by virtue of a tribe's dependent status." Ibid. (Emphasis added.)

Thus, in addition to the power to punish tribal offenders, the Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members. Id., at 322, n. 18. But exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation. Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148; Williams v. Lee, 358 U. S. 217, 219-220; United States v. Kagama, 118 U. S. 375, 381-382; see McClanahan v. Arizona State Tax Comm'n, 411 U. S. 164, 171. Since regulation of hunting and fishing by nonmembers of a tribe on lands no longer owned by the tribe bears no clear relationship to tribal self-government or internal relations,^[14] [565] the general principles of retained inherent sovereignty did not authorize the Crow Tribe to adopt Resolution No. 74-05.

The Court recently applied these general principles in Oliphant v. Suquamish Indian Tribe, 435 U. S. 191, rejecting a tribal claim of inherent sovereign authority to exercise criminal jurisdiction over non-Indians. Stressing that Indian tribes cannot exercise power inconsistent with their diminished status as sovereigns, the Court quoted Justice Johnson's words in his concurrence in Fletcher v. Peck, 6 Cranch 87, 147—the first Indian case to reach this Court—that the Indian tribes have lost any "right of governing every person within their limits except themselves." 435 U. S., at 209. Though Oliphant only determined inherent tribal authority in criminal matters,^[15] the principles on which it relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe. To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. Williams v. Lee, supra, at 223; Morris v. Hitchcock, 194 U. S. [566] 384; Buster v. Wright, 135 F. 947, 950 (CA8); see Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 152-154. A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. See Fisher v. District Court, 424 U. S. 382, 386; Williams v. Lee, supra, at 220; Montana Catholic Missions v. Missoula County, 200 U. S. 118, 128-129; Thomas v. Gay, 169 U. S. 264, 273.^[16]

No such circumstances, however, are involved in this case. Non-Indian hunters and fishermen on non-Indian fee land do not enter any agreements or dealings with the Crow Tribe so as to subject themselves to tribal civil jurisdiction. And nothing in this case suggests that such non-Indian hunting and fishing so threaten the Tribe's political or economic security as to justify tribal regulation. The complaint in the District Court did not allege that non-Indian hunting and fishing on fee lands imperil the subsistence or welfare of the Tribe.^[17] Furthermore, the District Court made express findings, left unaltered by the Court of Appeals, that the Crow Tribe has traditionally accommodated itself to the State's "near exclusive" regulation of hunting and fishing on fee lands within the reservation. 457 F. Supp., at 609-610. And the District Court found that Montana's statutory and regulatory scheme does not prevent the Crow Tribe from limiting [567] or forbidding non-Indian hunting and fishing on lands still owned by or held in trust for the Tribe or its members. Id., at 609.

IV

For the reasons stated in this opinion, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings.

It is so ordered.

JUSTICE STEVENS, concurring.

In its opinion in Choctaw Nation v. Oklahoma, 397 U. S. 620, the Court repeatedly pointed out that ambiguities in the governing treaties should be resolved in favor of the Indian tribes.^[18] That emphasis on a rule of construction favoring the tribes might arguably be read as having been intended to indicate that the strong presumption against dispositions [568] by the United States of land under navigable waters in the territories is not applicable to Indian reservations. However, for the following reasons, I do not so read the Choctaw Nation opinion.

In United States v. Holt State Bank, 270 U. S. 49, the Court unanimously and unequivocally had held that the presumption applied to Indian reservations. Although the references to Holt State Bank in the Court's opinion in Choctaw Nation can hardly be characterized as enthusiastic, see 397 U. S., at 634, the Choctaw Nation opinion did not purport to abandon or to modify the rule of Holt State Bank. Indeed, Justice Douglas, while joining the opinion of the Court, wrote a separate opinion to explain why he had concluded that the Choctaw Nation record supplied the "exceptional circumstances" required under the Holt State Bank rule.^[19]

Only seven Justices participated in the Choctaw Nation decision.^[20] JUSTICE WHITE, joined by THE CHIEF JUSTICE and Justice Black in dissent, relied heavily on the Holt State Bank line of authority, see 397 U. S., at 645-648, and, as I noted above, Justice Douglas, in his concurrence, also appears to have accepted the Holt State Bank rule. Because only four Justices, including Justice Douglas, joined the Court's opinion. I do not believe it should be read as having made a substantial change in settled law.

[569] Finally, it is significant for me that JUSTICE STEWART, who joined the Choctaw Nation opinion, is the author of the Court's opinion today. Just as he is, I am satisfied that the circumstances of the Choctaw Nation case differ significantly from the circumstances of this case. Whether I would have voted differently in the two cases if I had been a Member of the Court when Choctaw Nation was decided is a question I cannot answer. I am, however, convinced that unless the Court is to create a broad exception for Indian reservations, the Holt State Bank presumption is controlling. I therefore join the Court's opinion.

JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting in part.

Only two years ago, this Court reaffirmed that the terms of a treaty between the United States and an Indian tribe must be construed "`in the sense in which they would naturally be understood by the Indians.'" Washington v. Fishing Vessel Assn., 443 U. S. 658, 676 (1979), quoting from Jones v. Meehan, 175 U. S. 1, 11 (1899). In holding today that the bed of the Big Horn River passed to the State of Montana upon its admission to the Union, the Court disregards this settled rule of statutory construction. Because I believe that the United States intended, and the Crow Nation understood, that the bed of the Big Horn was to belong to the Crow Indians, I dissent from so much of the Court's opinion as holds otherwise.^[21]

I

As in any case involving the construction of a treaty, it is necessary at the outset to determine what the parties intended. [570] Washington v. Fishing Vessel Assn., 443 U. S., at 675. With respect to an Indian treaty, the Court has said that "the United States, as the party with the presumptively superior negotiating skills and superior knowledge of the language in which the treaty is recorded, has a responsibility to avoid taking advantage of the other side." Id., at 675-676. Obviously, this rule is applicable here. But before determining what the Crow Indians must have understood the Treaties of Fort Laramie to mean, it is appropriate to ask what the United States intended, for our inquiry need go no further if the United States meant to convey the bed of the Big Horn River to the Indians.

The Court concedes that the establishment of an Indian reservation can be an "appropriate public purpose" justifying a congressional conveyance of a riverbed. Ante, at 556. It holds, however, that no such public purpose or exigency could have existed here, since at the time of the Fort Laramie Treaties the Crow were a nomadic tribe dependent chiefly upon buffalo, and fishing was not important to their diet or way of life. Ibid. The factual premise upon which the Court bases its conclusion is open to serious question: while the District Court found that fish were not "a central part of the Crow diet," 457 F. Supp. 599, 602 (Mont. 1978), there was evidence at trial that the Crow ate fish both as a supplement to their buffalo diet and as a substitute for meat in time of scarcity.^[22]

Even if it were true that fishing was not important to the Crow Indians at the time the Fort Laramie Treaties came into being, it does not necessarily follow that there was no public purpose or exigency that could have led Congress to [571] convey the riverbed to the Crow. Indeed, history informs us that the very opposite was true. In negotiating these treaties, the United States was actuated by two somewhat conflicting purposes: the desire to provide for the Crow Indians, and the desire to obtain the cession of all Crow territory not within the ultimate reservation's boundaries. Retention of ownership of the riverbed for the benefit of the future state of Montana would have been inconsistent with each of these purposes.

First: It was the intent of the United States that the Crow Indians be converted from a nomadic, hunting tribe to a settled, agricultural people.^[23] The Treaty of Fort Laramie of Sept. 17, 1851, see 11 Stat. 749, and 2 C. Kappler, Indian Affairs: Laws and Treaties 594 (1904) (hereinafter Kappler), was precipitated by the depletion of game, timber, and forage by the constantly increasing number of settlers who crossed the lands of the Plains Indians on their way to California. Aggrieved by these depredations, the Indians had opposed that passage, sometimes by force.^[24] In order to ensure safe passage for the settlers, the United States in 1851 called together at Fort Laramie eight Indian Nations, including the Crow. The pronouncement made at that time by the United States Commissioner emphasized the Government's concern over the destruction of the game upon which the Indians depended.^[25] The treaty's Art. 5, which set specified [572] boundaries for the Indian Nations, explicitly provided that the signatory tribes "do not surrender the privilege of hunting, fishing, or passing over any of the tracts" described in the treaty, 2 Kappler, at 595 (emphasis added), and, further, its Art. 7 stated that the United States would provide an annuity in the form of "provisions, merchandise, domestic animals, and agricultural implements." Ibid.

The intent of the United States to provide alternative means of subsistence for the Plains Indians is demonstrated even more clearly by the subsequent Fort Laramie Treaty of May 7, 1868, between the United States and the Crow Nation. 15 Stat. 649. United States Commissioner Taylor, who met with the Crow Indians in 1867, had acknowledged to them that the game upon which they relied was "fast disappearing," and had stated that the United States proposed to furnish them with "homes and cattle, to enable you to begin to raise a supply or stock with which to support your families when the game was disappeared."^[26] Proceedings of the Great Peace Commission of 1867-1868, pp. 86-87 (Institute for the Development of Indian Law (1975)) (hereinafter Proceedings). Given this clear recognition by the United States that the traditional mainstay of the Crow Indians' diet was disappearing, it is inconceivable that the United States intended by the 1868 treaty to deprive the Crow of "potential control over a source of food on their [573] reservation."^[27] United States v. Finch, 548 F. 2d 822, 832 (CA9 1976), vacated on other grounds, 433 U. S. 676 (1977). See Alaska Pacific Fisheries v. United States, 248 U. S. 78 (1918).^[28]

Second: The establishment of the Crow Reservation was [574] necessitated by the same "public purpose" or "exigency" that led to the creation of the Choctaw and Cherokee Reservations discussed in Choctaw Nation v. Oklahoma, 397 U. S. 620 (1970). In both cases, Congress responded to pressure for Indian land by establishing reservations in return for the Indians' relinquishment of their claims to other territories.^[29] Just as the Choctaws and the Cherokees received their reservation in fee simple "`to inure to them while they shall exist as a nation and live on it,'" id., at 625, so the Crow were assured in 1867 that they would receive "a tract of your country as a home for yourselves and children forever, upon which your great Father will not permit the white man to trespass." Proceedings, at 86. Indeed, during the negotiations of both the 1851 and 1868 Treaties of Fort Laramie the United States repeatedly referred to the land as belonging to the Indians, and the treaties reflect this understanding.^[30] [575] Finally, like the Cherokee Reservation, see 397 U. S., at 628, the Crow Reservation created by Art. II of the 1868 treaty consisted of "one undivided tract of land described merely by exterior metes and bounds." 15 Stat. 650.

Since essentially the same "public purpose" led to the creation of both reservations, it is highly appropriate that the analysis of Choctaw Nation be applied in this case. As the State of Montana does here, the State of Oklahoma in Choctaw Nation claimed a riverbed that was surrounded on both sides by lands granted to an Indian tribe. This Court in Choctaw Nation found Oklahoma's claim to be "at the least strained," and held that all the land inside the reservation's exterior metes and bounds, including the riverbed, "seems clearly encompassed within the grant," even though no mention had been made of the bed. 397 U. S., at 628. The Court found that the "natural inference" to be drawn from the grants to the Choctaws and Cherokees was that "all the land within their metes and bounds was conveyed, including the banks and bed of rivers." Id., at 634. See also Donnelly v. United States, 228 U. S. 243, 259 (1913). The [576] Court offers no plausible explanation for its failure to draw the same "natural inference" here.^[31]

In Choctaw Nation, the State of Oklahoma also laid claim to a portion of the Arkansas River at the border of the Indian reservation. The Court's analysis of that claim lends weight to the conclusion that the bed of the Big Horn belongs to the Crow Indians. Interpreting the treaty language setting the boundary of the Cherokee Reservation "down the main channel of the Arkansas river," the Choctaw Court noted that such language repeatedly has been held to convey title to the midpoint of the channel, relying on Brewer-Elliott Oil & Gas Co. v. United States, 260 U. S. 77 (1922).^[32] 397 U. S., at 631-633. Here, Art. II of the 1868 Treaty of [577] Fort Laramie established the boundary of the Crow Reservation as running in part up the "mid-channel of the Yellowstone river." 15 Stat. 650. Thus, under Brewer-Elliott and Choctaw Nation, it is clear that the United States intended to grant the Crow the bed of the Yellowstone to the midpoint of the channel; it follows a fortiori that it was the intention of the United States to grant the Crow Indians the bed of that portion of the Big Horn that was totally encompassed by the reservation.^[33]

II

But even assuming, arguendo, that the United States intended to retain title to the bed of the Big Horn River for the benefit of the future State of Montana, it defies common sense to suggest that the Crow Indians would have so understood the terms of the Fort Laramie Treaties.^[34] In negotiating the 1851 treaty, the United States repeatedly referred to the territories at issue as "your country," as "your land," and as "your territory." See Crow Tribe of Indians v. United States, 151 Ct. Cl. 281, 287-291, 284 F. 2d 361, 364-367 (1960). Further, in Art. 3 of the treaty itself the Government undertook to protect the signatory tribes "against the commission of all depredations by the people of the said United States," and to compensate the tribes for any damages [578] they suffered thereby; in return, in Art. 2, the United States received the right to build roads and military posts on the Indians' territories. 2 Kappler, at 594.

The history of the treaty of 1868 is even more telling. By this time, whites were no longer simply passing through the Indian territories on their way to California. Instead, in the words of United States Commissioner Taylor, who addressed the Crow representatives gathered at Fort Laramie in 1867:

"We learn that valuable mines have been discovered in your country which in some instances are taken possession of by the whites. We learn that roads are laid out and travelled through your lands, that settlements have been made upon your lands, that your game is being driven away and is fast disappearing. We know also that the white people are rapidly increasing and are taking possession of and occupying all the valuable lands. Under these circumstances we are sent by the great Father and the Great Council in Washington to arrange some plan to relieve you, as far as possible, from the bad consequences of this state of things and to protect you from future difficulties." Proceedings, at 86. (Emphasis added.)

It is hardly credible that the Crow Indians who heard this declaration would have understood that the United States meant to retain the ownership of the riverbed that ran through the very heart of the land the United States promised to set aside for the Indians and their children "forever." Indeed, Chief Blackfoot, when addressed by Commissioner Taylor, responded: "The Crows used to own all this Country including all the rivers of the West." Id., at 88. (Emphasis added.) The conclusion is inescapable that the Crow Indians understood that they retained the ownership of at least those rivers within the metes and bounds of the reservation [579] granted them.^[35] This understanding could only have been strengthened by the reference in the 1868 treaty to the mid-channel of the Yellowstone River as part of the boundary of the reservation; the most likely interpretation that the Crow could have placed on that reference is that half the Yellowstone belonged to them, and it is likely that they accordingly deduced that all of the rivers within the boundary of the reservation belonged to them.

In fact, any other conclusion would lead to absurd results. Gold had been discovered in Montana in 1858, and sluicing operations had begun on a stream in western Montana in 1862; hundreds of prospectors were lured there by this news, and some penetrated Crow territory. N. Plummer, Crow Indians 109-110 (1974). As noted, Commissioner Taylor remarked in 1867 that whites were mining in Indian territory, and he specifically indicated that the United States intended to protect the Indians from such intrusions. Yet the result reached by the Court today indicates that Montana or its licensees would have been free to enter upon the Big Horn River for the purpose of removing minerals from its bed or banks; further, in the Court's view, they remain free to do so in the future. The Court's answer to a similar claim made by the State of Oklahoma in Choctaw Nation is fully applicable here: "We do not believe that [the Indians] would have considered that they could have been precluded from exercising these basic ownership rights to the river bed, and we think it very unlikely that the United States intended otherwise."^[36] 397 U. S., at 635.

[580] III

In Choctaw Nation, the Court was confronted with a claim almost identical to that made by the State of Montana in this case. There, as here, the argument was made that the silence of the treaties in question with regard to the ownership of the disputed riverbeds was fatal to the Indians' case. In both cases, the state claimant placed its principal reliance on this Court's statement in United States v. Holt State Bank, 270 U. S. 49, 55 (1926), that the conveyance of a riverbed "should not be regarded as intended unless the intention was definitely declared or otherwise made very plain." The Court flatly rejected this argument in Choctaw Nation, pointing out that "nothing in the Holt State Bank case or in the policy underlying its rule of construction . . . requires that courts blind themselves to the circumstances of the grant in determining the intent of the grantor."^[37] 397 U. S., at [581] 634. Since I believe that the Court has so blinded itself today, I respectfully dissent from its holding that the State of Montana has title to the bed of the Big Horn River.^[38]

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[1] Briefs of amici curiae urging reversal were filed by Warren Spannaus, Attorney General, James M. Schoessler, and Tom D. Tobin for the State of Minnesota et al.; by Slade Gorton, Attorney General, and Timothy R. Malone, Assistant Attorney General, for the State of Washington, joined by the Attorneys General for their respective States as follows: Robert Corbin of Arizona, Robert T. Stephan of Kansas, John Ashcroft of Missouri, Paul L. Douglas of Nebraska, and Robert B. Hansen of Utah; and by Paul A. Lenzinifor the International Association of Fish and Wildlife Agencies.

Briefs of amici curiae urging affirmance were filed by Robert D. Dellwo for the Coeur D'Alene Tribe of Indians et al.; and by Barry D. Ernstoff, Steven S. Anderson, Reid Peyton Chambers, Carl V. Ullman, and Arthur Lazarus, Jr., for the Confederated Tribes of the Colville Indian Reservation et al.

A brief of amici curiae was filed by officials for their respective States as follows: David H. Leroy, Attorney General of Idaho, and Robie G. Russell, Phillip J. Rassier, Steven V. Goddard, and Leslie L. Goddard, Deputy Attorneys General; Robert K. Corbin, Attorney General of Arizona; George Deukmejian, Attorney General of California, and R. H. Connett, Assistant Attorney General; Thomas J. Miller, Attorney General of Iowa; Robert T. Stephan, Attorney General of Kansas; Richard H. Bryan, Attorney General of Nevada; Jeff Bingaman, Attorney General of New Mexico; Allen I. Olson, Attorney General of North Dakota; Mark V. Meirhenry, Attorney General of South Dakota; Robert B. Hansen, Attorney General of Utah; Chauncey H. Browning, Attorney General of West Virginia; and Bronson C. La Follette, Attorney General of Wisconsin.

[2] According to the respondents, the Crow Tribe's interest in restricting hunting and fishing on the reservation focuses almost entirely on sports fishing and duck hunting in the waters and on the surface of the Big Horn River. The parties, the District Court, and the Court of Appeals have all assumed that ownership of the riverbed will largely determine the power to control these activities. Moreover, although the complaint in this case sought to quiet title only to the bed of the Big Horn River, we note the concession of the United States that if the bed of the river passed to Montana upon its admission to the Union, the State at the same time acquired ownership of the banks of the river as well.

[3] Congress was, of course, aware of this presumption once it was established by this Court. See Rosebud Sioux Tribe v. Kneip, 430 U. S. 584, 588.

[4] The Hitchcock decision expressly stated that the Red Lake Reservation was "a reservation within the accepted meaning of the term." 185 U. S., at 389.

[5] "[C]ommencing where the 107th degree of longitude west of Greenwich crosses the south boundary of Montana Territory; thence north along said 107th meridian to the mid-channel of the Yellowstone River; thence up said mid-channel of the Yellowstone to the point where it crosses the said southern boundary of Montana, being the 45th degree of north latitude; and thence east along said parallel of latitude to the place of beginning . . . ." Second Treaty of Fort Laramie, May 7, 1868, Art. II, 15 Stat. 650.

[6] In one recent case, Choctaw Nation v. Oklahoma, 397 U. S. 620, this Court did construe a reservation grant as including the bed of a navigable water, and the respondents argue that this case resembles Choctaw Nation more than it resembles the established line of cases to which Choctaw Nation is a singular exception. But the finding of a conveyance of the riverbed in Choctaw Nationwas based on very peculiar circumstances not present in this case.

Those circumstances arose from the unusual history of the treaties there at issue, a history which formed an important basis of the decision. Id., at 622-628. Immediately after the Revolutionary War, the United States had signed treaties of peace and protection with the Cherokee and Choctaw Tribes, reserving them lands in Georgia and Mississippi. In succeeding years, the United States bought large areas of land from the Indians to make room for white settlers who were encroaching on tribal lands, but the Government signed new treaties guaranteeing that the Indians could live in peace on those lands not ceded. The United States soon betrayed that promise. It proposed that the Tribes be relocated in a newly acquired part of the Arkansas Territory, but the new territory was soon overrun by white settlers, and through a series of new cession agreements the Indians were forced to relocate farther and farther west. Ultimately, most of the Tribes' members refused to leave their eastern lands, doubting the reliability of the Government's promises of the new western land, but Georgia and Mississippi, anxious for the relocation westward so they could assert jurisdiction over the Indian lands, purported to abolish the Tribes and distribute the tribal lands. The Choctaws and Cherokees finally signed new treaties with the United States aimed at rectifying their past suffering at the hands of the Federal Government and the States.

Under the Choctaw treaty, the United States promised to convey new lands west of the Arkansas Territory in fee simple, and also pledged that "no Territory or State shall ever have a right to pass laws for the government of the Choctaw Nation . . . and that no part of the land granted to them shall ever be embraced in any Territory or State." Treaty of Dancing Rabbit Creek, Sept. 27, 1830, 7 Stat. 333-334, quoted in Choctaw Nation v. Oklahoma. 397 U. S., at 625. In 1835, the Cherokees signed a treaty containing similar provisions granting reservation lands in fee simple and promising that the tribal lands would not become part of any State or Territory. Id., at 626. In concluding that the United States had intended to convey the riverbed to the Tribes before the admission of Oklahoma to the Union, the Choctaw Court relied on these circumstances surrounding the treaties and placed special emphasis on the Government's promise that the reserved lands would never become part of any State. Id., at 634-635. Neither the special historical origins of the Choctaw and Cherokee treaties nor the crucial provisions granting Indian lands in fee simple and promising freedom from state jurisdiction in those treaties have any counterparts in the terms and circumstances of the Crow treaties of 1851 and 1868.

[7] The complaint in this case did not allege that non-Indian hunting and fishing on reservation lands has impaired this privilege.

[8] Article IV of the treaty addressed hunting rights specifically. But that Article referred only to "unoccupied lands of the United States," viz., lands outside the reservation boundaries, and is accordingly not relevant here.

[9] The 1920 Crow Allotment Act was one of the special Allotment Acts Congress passed from time to time pursuant to the policy underlying the General Allotment Act. See S. Rep. No. 219, 66th Cong., 1st Sess., 5 (1919). The Senate Committee Report on the Crow Allotment bill stated that it "is in accordance with the policy to which Congress gave its adherence many years ago, and which found expression in the [General Allotment Act]." Ibid.

[10]The Court of Appeals discussed the effect of the Allotment Acts as follows:

"While neither of these Acts, nor any other to which our attention has been called, explicitly qualifies the Tribe's rights over hunting and fishing, it defies reason to suppose that Congress intended that non-members who reside on fee patent lands could hunt and fish thereon only by consent of the Tribe. So far as the record of this case reveals, no efforts to exclude completely non-members of the Crow Tribe from hunting and fishing within the reservation were being made by the Crow Tribe at the time of enactment of the Allotment Acts." 604 F. 2d 1162, 1168 (footnote omitted).

But nothing in the Allotment Acts supports the view of the Court of Appeals that the Tribe could nevertheless bar hunting and fishing by nonresident fee owners. The policy of the Acts was the eventual assimilation of the Indian population, Organized Village of Kake v. Egan, 369 U. S. 60, 72, and the "gradual extinction of Indian reservations and Indian titles." Draper v. United States, 164 U. S. 240, 246. The Secretary of the Interior and the Commissioner of Indian Affairs repeatedly emphasized that the allotment policy was designed to eventually eliminate tribal relations. See, e. g., Secretary of the Interior Ann. Rep., vol. 1, pp. 25-28 (1885); Secretary of the Interior Ann. Rep., vol. 1, p. 4 (1886); Commissioner of Indian Affairs Ann. Rep., vol. 1, pp. IV-X (1887); Secretary of the Interior Ann. Rep., vol. 1, pp. XXIX-XXXII (1888); Commissioner of Indian Affairs Ann. Rep. 3-4 (1889); Commissioner of Indian Affairs Ann. Rep. VI, XXXIX (1890); Commissioner of Indian Affairs Ann. Rep., vol. 1, pp. 3-9, 26 (1891); Commissioner of Indian Affairs Ann. Rep. 5 (1892); Secretary of the Interior Ann. Rep., vol. 1, p. IV (1894). And throughout the congressional debates on the subject of allotment, it was assumed that the "civilization" of the Indian population was to be accomplished, in part, by the dissolution of tribal relations. See, e. g., 11 Cong. Rec. 779 (Sen. Vest), 782 (Sen. Coke), 783-784 (Sen. Saunders), 875 (Sens. Morgan and Hoar), 881 (Sen. Brown), 905 (Sen. Butler), 939 (Sen. Teller), 1003 (Sen. Morgan), 1028 (Sen. Hoar), 1064, 1065 (Sen. Plumb), 1067 (Sen. Williams) (1881).

There is simply no suggestion in the legislative history that Congress intended that the non-Indians who would settle upon alienated allotted lands would be subject to tribal regulatory authority. Indeed, throughout the congressional debates, allotment of Indian land was consistently equated with the dissolution of tribal affairs and jurisdiction. See, e. g., id., at 785 (Sen. Morgan), 875 (Sen. Hoar), 876 (Sen. Morgan), 878 (Sens. Hoar and Coke), 881 (Sen. Brown), 908 (Sen. Call), 939 (Sen. Teller), 1028 (Sen. Hoar), 1067 (Sens. Edmunds and Williams). It defies common sense to suppose that Congress would intend that non-Indians purchasing allotted lands would become subject to tribal jurisdiction when an avowed purpose of the allotment policy was the ultimate destruction of tribal government. And it is hardly likely that Congress could have imagined that the purpose of peaceful assimilation could be advanced if feeholders could be excluded from fishing or hunting on their acquired property.

The policy of allotment and sale of surplus reservation land was, of course, repudiated in 1934 by the Indian Reorganization Act, 48 Stat. 984, 25 U. S. C. § 461 et seq. But what is relevant in this case is the effect of the land alienation occasioned by that policy on Indian treaty rights tied to Indian use and occupation of reservation land.

[11] See United States v. Bouchard, 464 F. Supp. 1316, 1336 (WD Wis.); United States v. Pollmann, 364 F. Supp. 995 (Mont.).

[12]House Report No. 2593 stated that the purpose of the bill that became 18 U. S. C. § 1165 was to make it unlawful to enter Indian land to hunt, trap, or fish without the consent of the individual Indian or tribe:

"Indian property owners should have the same protection as other property owners, for example, a private hunting club may keep nonmembers off its game lands or it may issue a permit for a fee. One who comes on such lands without permission may be prosecuted under State law but a non-Indian trespasser on an Indian reservation enjoys immunity.

.....

"Non-Indians are not subject to the jurisdiction of Indian courts and cannot be tried in Indian courts on trespass charges. Further, there are no Federal laws which can be invoked against trespassers." H. R. Rep. No. 2593, 85th Cong., 2d Sess., at 2.

[13] Subsequent Reports in the House and Senate, H. R. Rep. No. 625, 86th Cong., 1st Sess. (1959); S. Rep. No. 1686, 86th Cong., 2d Sess. (1960), also refer to "Indian lands" and "Indian property owners" rather than "Indian country." In Oliphant v. Suquamish Indian Tribe, 435 U. S. 191, this Court referred to S. Rep. No. 1686, which stated that "the legislation [18 U. S. C. § 1165] will give to the Indian tribes and to individual Indian owners certain rights that now exist as to others, and fills a gap in the present law for the protection of their property."435 U. S., at 206. (Emphasis added.)

Before the Court of Appeals decision, several other courts interpreted § 1165 to be confined to lands owned by Indians, or held in trust for their benefit. State v. Baker, 464 F. Supp. 1377 (WD Wis.); United States v. Bouchard, 464 F. Supp. 1316 (WD Wis.); United States v. Pollmann, supra; Donahue v. California Justice Court, 15 Cal. App. 3d 557, 93 Cal. Rptr. 310. Cf. United States v. Sanford, 547 F. 2d 1085, 1089 (CA9) (holding that § 1165 was designed to prevent encroachments on Indian lands, rejecting the argument that § 1165 makes illegal the unauthorized killing of wildlife on an Indian reservation, and noting that "the application of Montana game laws to the activities of non-Indians on Indian reservations does not interfere with tribal self-government on reservations").

[14] Any argument that Resolution No. 74-05 is necessary to Crow tribal self-government is refuted by the findings of the District Court that the State of Montana has traditionally exercised "near exclusive" jurisdiction over hunting and fishing on fee lands within the reservation, and that the parties to this case had accommodated themselves to the state regulation. 457 F. Supp. 599, 610. The Court of Appeals left these findings unaltered and indeed implictly reaffirmed them, adding that the record reveals no attempts by the Tribe at the time of the Crow Allotment Act to forbid non-Indian hunting and fishing on reservation lands. 604 F. 2d, at 1168, and n. 11A.

[15] By denying the Suquamish Tribe criminal jurisdiction over non-Indians, however, the Oliphant case would seriously restrict the ability of a tribe to enforce any purported regulation of non-Indian hunters and fishermen. Moreover, a tribe would not be able to rely for enforcement on the federal criminal trespass statute, 18 U. S. C. § 1165, since that statute does not apply to fee patented lands. See supra, at 561-563, and nn. 10-12.

[16] As a corollary, this Court has held that Indian tribes retain rights to river waters necessary to make their reservations livable. Arizona v. California, 373 U. S. 546, 599.

[17] Similarly, the complaint did not allege that the State has abdicated or abused its responsibility for protecting and managing wildlife, has established its season, bag, or creel limits in such a way as to impair the Crow Indians' treaty rights to fish or hunt, or has imposed less stringent hunting and fishing regulations within the reservation than in other parts of the State. Cf. United States v. Washington, 384 F. Supp. 312, 410-411 (WD Wash.), aff'd, 520 F. 2d 676 (CA9).

[18]The Court described this rule of construction, and explained the reasoning underlying it:

"[T]hese treaties are not to be considered as exercises in ordinary conveyancing. The Indian Nations did not seek out the United States and agree upon an exchange of lands in an arm's-length transaction. Rather, treaties were imposed upon them and they had no choice but to consent. As a consequence, this Court has often held that treaties with the Indians must be interpreted as they would have understood them, see, e. g., Jones v. Meehan, 175 U. S. 1, 11 (1899), and any doubtful expressions in them should be resolved in the Indians' favor. See Alaska Pacific Fisheries v. United States, 248 U. S. 78, 89 (1918). Indeed, the Treaty of Dancing Rabbit Creek itself provides that `in the construction of this Treaty wherever well founded doubt shall arise, it shall be construed most favourably towards the Choctaws.' 7 Stat. 336." 397 U. S., at 630-631.

The Court went on to base its decision on this rule of construction:

"[T]he court in [United States v.] Holt State Bank [270 U. S. 49] itself examined the circumstances in detail and concluded `the reservation was not intended to effect such a disposal.' 270 U. S., at 58. We think that the similar conclusion of the Court of Appeals in this case was in error, given the circumstances of the treaty grants and the countervailing rule of construction that well-founded doubt should be resolved in petitioners' favor." Id., at 634.

[19]Before reviewing the history of the Cherokee and Choctaw Reservations, Justice Douglas wrote:

"[W]hile the United States holds a domain as a territory, it may convey away the right to the bed of a navigable river, not retaining that property for transfer to a future State, though as stated in Holt State Bank that purpose is `not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain.' 270 U. S., at 55. Such exceptional circumstances are present here." 397 U. S., at 639.

[20] When Choctaw Nation was decided, the Court consisted of only eight active Justices. Justice Harlan did not participate in the consideration or decision of Choctaw Nation.

[21] While the complaint in this case sought to quiet title only to the bed of the Big Horn River, see ante, at 550, n. 1, I think it plain that if the bed of the river was reserved to the Crow Indians before statehood, so also were the banks up to the high-water mark.

[22] See 1 App. 39-40 (testimony of Joe Medicine Crow, Tribal Historian). See also id., at 90, 97 (testimony of Henry Old Coyote). Thus, while one historian has stated that "I have never met a reference to eating of fish" by the Crow Indians, R. Lowie, The Crow Indians 72 (1935), it is clear that such references do exist. See 457 F. Supp., at 602. See also n. 7, infra.

[23] See generally United States v. Sioux Nation of Indians, 448 U. S. 371, 380, n. 11 (1980) (discussing federal reservation policy).

[24] The history of the events leading up to the Fort Laramie Treaty of 1851 is recounted in detail in Crow Tribe of Indians v. United States. 151 Ct. Cl. 281, 284 F. 2d 361 (1960), cert. denied, 366 U. S. 924 (1961); Crow Nation v. United States, 81 Ct. Cl. 238 (1935); and Fort Berthold Indians v. United States, 71 Ct. Cl. 308 (1930).

[25]According to an account published in the Saint Louis Republican, Oct. 26, 1851, Treaty Commissioner Mitchell stated:

"The ears of your Great Father are always open to the complaints of his Red Children. He has heard and is aware that your buffalo and game are driven off and your grass and timber consumed by the opening of roads and the passing of emigrants through your countries. For these losses he desires to compensate you." Quoted in Crow Tribe of Indians v. United States, 151 Ct. Cl., at 290, 284 F. 2d, at 366.

The same concern was expressed in internal communications of the Government. See, e. g., id., at 287-288, 284 F. 2d, at 365 (letter of W. Medill, Commissioner of Indian Affairs to the Secretary of the Interior).

[26] The 1868 treaty provided that members of the Crow Tribe who commenced farming would be allotted land and given agricultural supplies; it also provided that subsistence rations for a period of four years would be supplied to every Indian who agreed to settle on the reservation. See Arts. VI, VIII, and IX of the treaty, 15 Stat. 650-652.

[27]It is significant that in 1873 the United States Commissioners who sought to negotiate a further diminishment of the Crow Reservation were instructed by the very Act of Mar. 3, 1873, ch. 321, 17 Stat. 626, that "if there is upon such reservation a locality where fishing could be valuable to the Indians, [they should] include the same [in the diminished reservation] if practicable . . . ."

That those fishing rights would have been valuable to the Crow Indians is suggested by the statement of Chief Blackfoot at the 1867 Fort Laramie Conference:

"There is plenty of buffalo, deer, elk, and antelope in my country. There is plenty of beaver in all the streams. There is plenty of fish too. I never yet heard of any of the Crow Nation dying of starvation. I know that the game is fast decreasing, and whenever it gets scarce, I will tell my Great Father. That will be time enough to go farming." Proceedings, at 91. (Emphasis added.)

Edwin Thompson Denig, a white fur trader who resided in Crow territory from approximately 1833 until 1856, also remarked:

"Every creek and river teems with beaver, and good fish and fowl can be had at any stream in the proper season." E. Denig, Of the Crow Nation 21 (1980).

[28] In Alaska Pacific Fisheries, the United States sued to enjoin a commercial fishing company from maintaining a fish trap in navigable waters off the Annette Islands in Alaska, which had been set aside for the Metlakahtla Indians. The lower courts granted the relief sought, and this Court affirmed. The Court noted: "That Congress had power to make the reservation inclusive of the adjacent waters and submerged land as well as the upland needs little more than statement." 248 U. S., at 87. This was because the reservation was a setting aside of public property "for a recognized public purpose—that of safe-guarding and advancing a dependent Indian people dwelling within the United States." Id., at 88. The Court observed that "[t]he Indians naturally looked on the fishing grounds as part of the islands," and it found further support for its conclusion "in the general rule that statutes passed for the benefit of dependent Indian tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indians." Id., at 89.

[29] That the Choctaws and Cherokees were forced to leave their original homeland entirely, while the Crow were forced to accept repeated diminishments of their territory, does not distinguish Choctaw Nation from this case; indeed, if anything, that distinction suggests that the Crow Indians would have had an even greater expectancy than did the Choctaws and Cherokees that the rivers encompassed by their reservation would continue to belong to them. The "public purpose" behind the creation of these reservations in each case was the same: "to provide room for the increasing numbers of new settlers who were encroaching upon Indian lands during their westward migrations." Choctaw Nation v. Oklahoma, 397 U. S., at 623. While the Fort Laramie Treaty of 1851 may have been designed primarily to assure safe passage for settlers crossing Indian lands, by 1868 settlers and miners were remaining in Montana. See N. Plummer, Crow Indians 109-114 (1974). Accordingly, whereas the signatory tribes, by Art. 5 of the 1851 treaty, did not "abandon or prejudice any rights or claims they may have to other lands," see 2 Kappler, at 595, by Art. II of the 1868 treaty the Crow Indians "relinquish[ed] all title, claims, or rights in and to any portion of the territory of the United States, except such as is embraced within the [reservation] limits aforesaid." 15 Stat. 650.

[30] See Crow Tribe of Indians v. United States, 151 Ct. Cl., at 288-291, 284 F. 2d, at 365-367; Proceedings, at 86. The Court suggests that the 1851 treaty was simply "a covenant among several tribes which recognized specific boundaries for their respective territories." Ante, at 553. But this interpretation of the treaty consistently has been rejected by the Court of Claims, which has held that the treaty recognized title in the signatory Indian Nations. See Crow Tribe of Indians, 151 Ct. Cl., at 291, 284 F. 2d, at 367; Crow Nation v. United States, 81 Ct. Cl., at 271-272; Fort Berthold Indians v. United States, 71 Ct. Cl., 308 (1930). Further, the Court's interpretation is contrary to the analysis of the 1851 treaty made in Shoshone Indians v. United States,324 U. S. 335, 349 (1945) ("the circumstances surrounding the execution of the Fort Laramie treaty [of 1851] indicate a purpose to recognize the Indian title to the lands described").

In any event, as the Court concedes, ante, at 553, it is beyond dispute that the 1868 treaty set apart a reservation "for the absolute and undisturbed use and occupation" of the Crow Indians. Cf. United States v. Sioux Nation of Indians, 448 U. S., at 374-376 (discussing the similar provisions of the Fort Laramie Treaty of April 29, 1868, 15 Stat. 635, between the United States and the Sioux Nation).

[31] As noted above, neither the "special historical origins" of the Choctaw and Cherokee treaties, nor the provisions of those treaties granting Indian lands in fee simple, serve to distinguish this case from Choctaw Nation. Equally unpersuasive is the suggestion that in Choctaw the Court placed "special emphasis on the Government's promise that the reserved lands would never become part of any State." Ante, at 556, n. 5. Rather than placing "special emphasis" on this promise, the Choctaw Court indicated only that the promise reinforced the conclusion that the Court drew from an analysis of the language of conveyance contained in the treaties. 397 U. S., at 635.

[32] In Brewer-Elliott, the United States established a reservation for the Osage Indians that was bounded on one side "by . . . the main channel of the Arkansas river." 260 U. S., at 81. This Court held that the portion of the Arkansas River in question was nonnavigable and that "the title of the Osages as granted certainly included the bed of the river as far as the main channel, because the words of the grant expressly carry the title to that line." Id., at 87. (Emphasis added.) While the Court purported to reserve the question whether vesting ownership of the riverbed in the Osage Indians would have constituted an appropriate "public purpose" within the meaning of Shively v. Bowlby, 152 U. S. 1 (1894), if the stream had been navigable, that question essentially had been resolved four years earlier in Alaska Pacific Fisheries. See n. 8, supra. In any event, Choctaw Nation clearly holds, and the Court concedes, ante, at 556, that the establishment of an Indian reservation can be an "appropriate public purpose" within the meaning of Shively v. Bowlby.

[33] Later events confirm this conclusion. In 1891, the Crow Indians made a further cession of territory. See Act of Mar. 3, 1891, § 31, 26 Stat. 1040. This cession was bounded in part by the Big Horn River. Significantly, the Act described the boundary of the cession as the "mid-channel" of the river; that language necessarily indicates that the Crow owned the entire bed of the Big Horn prior to the cession, and that by the Act they were ceding half the bed in the affected stretch of the river, while retaining the other half in that stretch and the whole of the bed in the portion of the river that remained surrounded by their lands.

[34] Counsel for the State of Montana acknowledged at oral argument that the Crow Indians did not understand the meaning of the equal-footing doctrine at the times they entered into the Fort Laramie Treaties. Tr. of Oral Arg. 13-14.

[35] Statements made by Chief Blackfoot during the treaty negotiations of 1873 buttress this conclusion. See, e. g., 3 App. 136 ("The Great Spirit made these mountains and rivers for us, and all this land"); id., at 171 ("On the other side of the river all those streams belong to the Crows").

[36] The Court suggests that the fact the United States retained a navigational easement in the Big Horn River indicates that the 1868 treaty could not have granted the Crow the exclusive right to occupy all the territory within the reservation boundary. Ante, at 555. But the retention of a navigational easement obviously does not preclude a finding that the United States meant to convey the land beneath the navigable water. See, e. g., Choctaw Nation, supra; Alaska Pacific Fisheries, supra.

[37] The Court's reliance on Holt State Bank is misplaced for other reasons as well. At issue in that case was the bed of Mud Lake, a once navigable body of water in the Red Lake Reservation in Minnesota. Prior to the case, most of the reservation, and all the tracts surrounding the lake, had been "relinquished and ceded" by the Indians and sold off to homesteaders. 270 U. S., at 52-53. No such circumstances are present here. See n. 18, infra.

Moreover, a critical distinction between this case and Holt State Bank arises from the questionable status of the Red Lake Reservation before Minnesota became a State. The Court in Holt State Bank concluded that in the treaties preceding statehood there had been, with respect to the Red Lake area—unlike other areas—"no formal setting apart of what was not ceded, nor any affirmative declaration of the rights of the Indians therein . . . ." 270 U. S., at 58 (footnote omitted). Thus, Holt State Bank clearly does not control a case, such as this one, in which, prior to statehood, the United States set apart by formal treaty a reservation that included navigable waters. See n. 10, supra.

Finally, the Court fails to recognize that it is Holt State Bank, not Choctaw Nation, that stands as "a singular exception" to this Court's established line of cases involving claims to submerged lands adjacent to or encompassed by Indian reservations. See Choctaw Nation; Brewer-Elliott; Alaska Pacific Fisheries; Donnelly v. United States, all supra.

[38] I agree with the Court's resolution of the question of the power of the Tribe to regulate non-Indian fishing and hunting on reservation land owned in fee by nonmembers of the Tribe. I note only that nothing in the Court's disposition of that issue is inconsistent with the conclusion that the bed of the Big Horn River belongs to the Crow Indians. There is no suggestion that any parcels alienated in consequence of the Indian General Allotment Act of 1887, 24 Stat. 388, or the Crow Allotment Act of 1920, 41 Stat. 751, included portions of the bed of the Big Horn River. Further, the situation here is wholly unlike that in Puyallup Tribe v. Washington Game Dept., 433 U. S. 165 (1977). As the Court recognizes, ante, at 561, the Puyallups alienated, in fee simple, the great majority of the lands in the reservation, including all the land abutting the Puyallup River. 433 U. S., at 173-174, and n. 11. This is not such a case.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

[132] Jason W. Kellahin reargued the cause for the petitioners in No. 80-11. With him on the briefs were Bruce D. Black, Thomas H. Burton, and John Wimbish. John R. Cooney reargued the cause for petitioners in No. 80-15. With him on the briefs were Mark B. Thompson III, John H. Pickering, Samuel A. Stern, R. H. Landt, and Richard L. Marlar.

Deputy Solicitor General Claiborne reargued the cause for respondent Secretary of the Interior in both cases. With him on the brief on reargument were Acting Solicitor General Wallace and Assistant Attorney General Dinkins. With him on the brief on the original argument were Solicitor General McCree, Acting Assistant Attorney General Liotta, Edwin S. Kneedler, Jacques B. Gelin, and Martin W. Matzen. Robert J. Nordhaus reargued the cause for respondents Jicarilla Apache Tribe et al. in both cases. With him on the briefs were B. Reid Haltom and Terry D. Farmer.^[2]

Briefs of amici curiae urging affirmance were filed by Harry R. Sachse, Reid Peyton Chambers, Charles A. Hobbs, Robert A. Warden, Lawrence White, and Steven S. Anderson for the Council of Energy Resource Tribes et al.; and by George P. Vlassis for the Navajo Tribe of Indians.

[133] JUSTICE MARSHALL delivered the opinion of the Court.

Pursuant to long-term leases with the Jicarilla Apache Tribe, petitioners, 21 lessees, extract and produce oil and gas from the Tribe's reservation lands. In these two consolidated cases, petitioners challenge an ordinance enacted by the Tribe imposing a severance tax on "any oil and natural gas severed, saved and removed from Tribal lands." See Oil and Gas Severance Tax No. 77-0-02, App. 38. We granted certiorari to determine whether the Tribe has the authority to impose this tax, and, if so, whether the tax imposed by the Tribe violates the Commerce Clause.

I

The Jicarilla Apache Tribe resides on a reservation in northwestern New Mexico. Established by Executive Order in 1887,^[3] the reservation contains 742,315 acres, all of which are held as tribal trust property. The 1887 Executive [134] Order set aside public lands in the Territory of New Mexico for the use and occupation of the Jicarilla Apache Indians, and contained no special restrictions except for a provision protecting pre-existing rights of bona fide settlers.^[4] Approximately 2,100 individuals live on the reservation, with the majority residing in the town of Dulce, N. M., near the Colorado border.

The Tribe is organized under the Indian Reorganization Act of 1934, ch. 576, 48 Stat. 984, 25 U. S. C. § 461 et seq., which authorizes any tribe residing on a reservation to adopt a constitution and bylaws, subject to the approval of the Secretary of the Interior (Secretary).^[5] The Tribe's first Constitution, approved by the Secretary on August 4, 1937, preserved all powers conferred by § 16 of the Indian Reorganization Act of 1934, ch. 576, 48 Stat. 987, 25 U. S. C. § 476. In 1968, the Tribe revised its Constitution to specify:

"The inherent powers of the Jicarilla Apache Tribe, including those conferred by Section 16 of the Act of June 18, 1934 (48 Stat. 984), as amended, shall vest in the tribal council and shall be exercised thereby subject only to limitations imposed by the Constitution of the United States, applicable Federal statutes and regulations of [135] the Department of the Interior, and the restrictions established by this revised constitution." Revised Constitution of the Jicarilla Apache Tribe, Art. XI, § 1.

The Revised Constitution provides that "[t]he tribal council may enact ordinances to govern the development of tribal lands and other resources," Art. XI, § 1(a)(3). It further provides that "[t]he tribal council may levy and collect taxes and fees on tribal members, and may enact ordinances, subject to approval by the Secretary of the Interior, to impose taxes and fees on non-members of the tribe doing business on the reservation," Art. XI, § 1(e). The Revised Constitution was approved by the Secretary on February 13, 1969.

To develop tribal lands, the Tribe has executed mineral leases encompassing some 69% of the reservation land. Beginning in 1953, the petitioners entered into leases with the Tribe. The Commissioner of Indian Affairs, on behalf of the Secretary, approved these leases, as required by the Act of May 11, 1938, ch. 198, 52 Stat. 347, 25 U. S. C. §§ 396a-396g (1938 Act). In exchange for a cash bonus, royalties, and rents, the typical lease grants the lessee "the exclusive right and privilege to drill for, mine, extract, remove, and dispose of all the oil and natural gas deposits in or under" the leased land for as long as the minerals are produced in paying quantities. App. 22. Petitioners may use oil and gas in developing the lease without incurring the royalty. Id., at 24. In addition, the Tribe reserves the rights to use gas without charge for any of its buildings on the leased land, and to take its royalties in kind. Id., at 27-28. Petitioners' activities on the leased land have been subject to taxes imposed by the State of New Mexico on oil and gas severance and on oil and gas production equipment. Id., at 129. See Act of Mar. 3, 1927, ch. 299, § 3, 44 Stat. 1347, 25 U. S. C. § 398c (permitting state taxation of mineral production on Indian reservations) (1927 Act).

Pursuant to its Revised Constitution, the Tribal Council adopted an ordinance imposing a severance tax on oil and gas [136] production on tribal land. See App. 38. The ordinance was approved by the Secretary, through the Acting Director of the Bureau of Indian Affairs, on December 23, 1976. The tax applies to "any oil and natural gas severed, saved and removed from Tribal lands . . . ." Ibid. The tax is assessed at the wellhead at $0.05 per million Btu's of gas produced and $0.29 per barrel of crude oil or condensate produced on the reservation, and it is due at the time of severance. Id., at 38-39. Oil and gas consumed by the lessees to develop their leases or received by the Tribe as in-kind royalty payments are exempted from the tax. Ibid.; Brief for Respondent Jicarilla Apache Tribe 59, n. 42.

In two separate actions, petitioners sought to enjoin enforcement of the tax by either the tribal authorities or the Secretary. The United States District Court for the District of New Mexico consolidated the cases, granted other lessees leave to intervene, and permanently enjoined enforcement of the tax. The District Court ruled that the Tribe lacked the authority to impose the tax, that only state and local authorities had the power to tax oil and gas production on Indian reservations, and that the tax violated the Commerce Clause.

The United States Court of Appeals for the Tenth Circuit, sitting en banc, reversed. 617 F. 2d 537 (1980).^[6] The Court of Appeals reasoned that the taxing power is an inherent attribute of tribal sovereignty that has not been divested by any treaty or Act of Congress, including the 1927 Act, 25 U. S. C. § 398c. The court also found no Commerce Clause violation. We granted certiorari, 449 U. S. 820 (1980), and we now affirm the decision of the Court of Appeals.

II

Petitioners argue, and the dissent agrees, that an Indian tribe's authority to tax non-Indians who do business on the [137] reservation stems exclusively from its power to exclude such persons from tribal lands. Because the Tribe did not initially condition the leases upon the payment of a severance tax, petitioners assert that the Tribe is without authority to impose such a tax at a later time. We disagree with the premise that the power to tax derives only from the power to exclude. Even if that premise is accepted, however, we disagree with the conclusion that the Tribe lacks the power to impose the severance tax.

A

In Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134 (1980) (Colville), we addressed the Indian tribes' authority to impose taxes on non-Indians doing business on the reservation. We held that "[t]he power to tax transactions occurring on trust lands and significantly involving a tribe or its members is a fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication of their dependent status." Id., at 152. The power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument of self-government and territorial management. This power enables a tribal government to raise revenues for its essential services. The power does not derive solely from the Indian tribe's power to exclude non-Indians from tribal lands. Instead, it derives from the tribe's general authority, as sovereign, to control economic activity within its jurisdiction, and to defray the cost of providing governmental services by requiring contributions from persons or enterprises engaged in economic activities within that jurisdiction. See, e. g., Gibbons v. Ogden, 9 Wheat. 1, 199 (1824).

The petitioners avail themselves of the "substantial privilege of carrying on business" on the reservation. Mobil Oil Corp. v. Commissioner of Taxes, 445 U. S. 425, 437 (1980); Wisconsin v. J. C. Penney Co., 311 U. S. 435, 444-445 (1940). They benefit from the provision of police protection and other governmental services, as well as from " `the advantages [138] of a civilized society' " that are assured by the existence of tribal government. Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U. S. 207, 228 (1980) (quoting Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434, 445 (1979)). Numerous other governmental entities levy a general revenue tax similar to that imposed by the Jicarilla Tribe when they provide comparable services. Under these circumstances, there is nothing exceptional in requiring petitioners to contribute through taxes to the general cost of tribal government.^[7] Cf. Commonwealth Edison Co. v. Montana, 453 U. S. 609, 624-629 (1981); id., at 647 (BLACKMUN, J., dissenting); Mobil Oil Corp. v. Commissioner of Taxes, supra, at 436-437.

As we observed in Colville, supra, the tribe's interest in levying taxes on nonmembers to raise "revenues for essential governmental programs . . . is strongest when the revenues are derived from value generated on the reservation by activities involving the Tribes and when the taxpayer is the recipient of tribal services." 447 U. S., at 156-157. This surely is the case here. The mere fact that the government imposing the tax also enjoys rents and royalties as the lessor of the mineral lands does not undermine the government's authority to impose the tax. See infra, at 145-148. The royalty payments from the mineral leases are paid to the Tribe in its role as partner in petitioners' commercial venture. The severance tax, in contrast, is petitioners' contribution "to the general cost of providing governmental services." Commonwealth Edison Co. v. Montana, supra, at 623. State governments commonly receive both royalty payments and severance taxes from lessees of mineral lands within their borders.

[139] Viewing the taxing power of Indian tribes as an essential instrument of self-government and territorial management has been a shared assumption of all three branches of the Federal Government. Cf. Colville, supra, at 153. In Colville, the Court relied in part on a 1934 opinion of the Solicitor for the Department of the Interior. In this opinion, the Solicitor recognized that, in the absence of congressional action to the contrary, the tribes' sovereign power to tax " `may be exercised over members of the tribe and over nonmembers, so far as such nonmembers may accept privileges of trade, residence, etc., to which taxes may be attached as conditions.' " 447 U. S., at 153 (quoting Powers of Indian Tribes, 55 I.D. 14, 46 (1934)). Colville further noted that official executive pronouncements have repeatedly recognized that "Indian tribes possess a broad measure of civil jurisdiction over the activities of non-Indians on Indian reservation lands in which the tribes have a significant interest . . . , including jurisdiction to tax." 447 U. S., at 152-153 (citing 23 Op. Atty. Gen. 214 (1900); 17 Op. Atty. Gen. 134 (1881); 7 Op. Atty. Gen. 174 (1855)).^[8]

Similarly, Congress has acknowledged that the tribal power to tax is one of the tools necessary to self-government and territorial control. As early as 1879, the Senate Judiciary [140] Committee acknowledged the validity of a tax imposed by the Chickasaw Nation on non-Indians legitimately within its territory:

"We have considered [Indian tribes] as invested with the right of self-government and jurisdiction over the persons and property within the limits of the territory they occupy, except so far as that jurisdiction has been restrained and abridged by treaty or act of Congress. Subject to the supervisory control of the Federal Government, they may enact the requisite legislation to maintain peace and good order, improve their condition, establish school systems, and aid their people in their efforts to acquire the arts of civilized life; and they undoubtedly possess the inherent right to resort to taxation to raise the necessary revenue for the accomplishment of these vitally important objects — a right not in any sense derived from the Government of the United States." S. Rep. No. 698, 45th Cong., 3d Sess., 1-2 (1879) (emphasis added).

Thus, the views of the three federal branches of government, as well as general principles of taxation, confirm that Indian tribes enjoy authority to finance their governmental services through taxation of non-Indians who benefit from those services. Indeed, the conception of Indian sovereignty that this Court has consistently reaffirmed permits no other conclusion. As we observed in United States v. Mazurie, 419 U. S. 544, 557 (1975). "Indian tribes within `Indian country' are a good deal more than `private, voluntary organizations.' " They "are unique aggregations possessing attributes of sovereignty over both their members and their territory." Ibid. See, e. g., Worcester v. Georgia, 6 Pet. 515, 557 (1832); Iron Crow v. Oglala Sioux Tribe of Pine Ridge Reservation, 231 F. 2d 89, 92, 99 (CA8 1956); Crabtree v. Madden, 54 F. 426, 428-429 (CA8 1893); Cohen, `The Spanish Origin of Indian Rights in the Law of the United States,' in The Legal Conscience 230, 234 (L. Cohen ed. [141] 1960). Adhering to this understanding, we conclude that the Tribe's authority to tax non-Indians who conduct business on the reservation does not simply derive from the Tribe's power to exclude such persons, but is an inherent power necessary to tribal self-government and territorial management.

Of course, the Tribe's authority to tax nonmembers is subject to constraints not imposed on other governmental entities: the Federal Government can take away this power, and the Tribe must obtain the approval of the Secretary before any tax on nonmembers can take effect. These additional constraints minimize potential concern that Indian tribes will exercise the power to tax in an unfair or unprincipled manner, and ensure that any exercise of the tribal power to tax will be consistent with national policies.

We are not persuaded by the dissent's attempt to limit an Indian tribe's authority to tax non-Indians by asserting that its only source is the tribe's power to exclude such persons from tribal lands. Limiting the tribes' authority to tax in this manner contradicts the conception that Indian tribes are domestic, dependent nations, as well as the common understanding that the sovereign taxing power is a tool for raising revenue necessary to cover the costs of government.

Nor are we persuaded by the dissent that three early decisions upholding tribal power to tax nonmembers support this limitation. Post, at 175-183, discussing Morris v. Hitchcock, 194 U. S. 384 (1904); Buster v. Wright, 135 F. 947 (CA8 1905), appeal dism'd, 203 U. S. 599 (1906); Maxey v. Wright, 3 Ind. T. 243, 247-250, 54 S. W. 807, 809 (Ct. App. Ind. T.), aff'd, 105 F. 1003 (CA8 1900). In discussing these cases, the dissent correctly notes that a hallmark of Indian sovereignty is the power to exclude non-Indians from Indian lands, and that this power provides a basis for tribal authority to tax. None of these cases, however, establishes that the authority to tax derives solely from the power to exclude. Instead, these cases demonstrate that a tribe has the power to tax nonmembers only to the extent the nonmember enjoys the [142] privilege of trade or other activity on the reservation to which the tribe can attach a tax. This limitation on tribal taxing authority exists not because the tribe has the power to exclude nonmembers, but because the limited authority that a tribe may exercise over nonmembers does not arise until the nonmember enters the tribal jurisdiction. We do not question that there is a significant territorial component to tribal power: a tribe has no authority over a nonmember until the nonmember enters tribal lands or conducts business with the tribe. However, we do not believe that this territorial component to Indian taxing power, which is discussed in these early cases, means that the tribal authority to tax derives solely from the tribe's power to exclude nonmembers from tribal lands.

Morris v. Hitchcock, for example, suggests that the taxing power is a legitimate instrument for raising revenue, and that a tribe may exercise this power over non-Indians who receive privileges from the tribe, such as the right to trade on Indian land. In Morris, the Court approved a tax on cattle grazing and relied in part on a Report to the Senate by the Committee on the Judiciary, which found no legal defect in previous tribal tax legislation having "a twofold object — to prevent the intrusion of unauthorized persons into the territory of the Chickasaw Nation, and to raise revenue." 194 U. S., at 389 (emphasis added). In Maxey v. Wright, the question of Indian sovereignty was not even raised: the decision turned on the construction of a treaty denying the Tribe any governing or jurisdictional authority over nonmembers. 3 Ind. T., at 247-248, 54 S. W., at 809.^[9]

[143] Finally, the decision in Buster v. Wright actually undermines the theory that the tribes' taxing authority derives solely from the power to exclude non-Indians from tribal lands. Under this theory, a non-Indian who establishes lawful presence in Indian territory could avoid paying a tribal tax by claiming that no residual portion of the power to exclude supports the tax. This result was explicitly rejected in Buster v. Wright. In Buster, deeds to individual lots in Indian territory had been granted to non-Indian residents, and cities and towns had been incorporated. As a result, Congress had expressly prohibited the Tribe from removing these non-Indian residents. Even though the ownership of land and the creation of local governments by non-Indians established their legitimate presence on Indian land, the court held that the Tribe retained its power to tax. The court concluded that "[n]either the United States, nor a state, nor any other sovereignty loses the power to govern the people within its borders by the existence of towns and cities therein endowed with the usual powers of municipalities, nor by the ownership nor occupancy of the land within its territorial jurisdiction by citizens or foreigners." 135 F., at 952 (emphasis [144] added).^[10] This result confirms that the Tribe's authority to tax derives not from its power to exclude, but from its power to govern and to raise revenues to pay for the costs of government.

We choose not to embrace a new restriction on the extent of the tribal authority to tax, which is based on a questionable interpretation of three early cases. Instead, based on the views of each of the federal branches, general principles of taxation, and the conception of Indian tribes as domestic, dependent nations, we conclude that the Tribe has the authority to impose a severance tax on the mining activities of petitioners as part of its power to govern and to pay for the costs of self-government.

B

Alternatively, if we accept the argument, advanced by petitioners and the dissent, that the Tribe's authority to tax derives solely from its power to exclude non-Indians from the reservation, we conclude that the Tribe has the authority to impose the severance tax challenged here. Nonmembers who lawfully enter tribal lands remain subject to the tribe's power to exclude them. This power necessarily includes the lesser power to place conditions on entry, on continued presence, or on reservation conduct, such as a tax on business activities conducted on the reservation. When a tribe grants a non-Indian the right to be on Indian land, the tribe agrees not to exercise its ultimate power to oust the non-Indian as long as the non-Indian complies with the initial conditions of entry. However, it does not follow that the lawful property right to be on Indian land also immunizes the non-Indian from the tribe's exercise of its lesser-included power to tax or to [145] place other conditions on the non-Indian's conduct or continued presence on the reservation.^[11] A nonmember who enters the jurisdiction of the tribe remains subject to the risk that the tribe will later exercise its sovereign power. The fact that the tribe chooses not to exercise its power to tax when it initially grants a non-Indian entry onto the reservation does not permanently divest the tribe of its authority to impose such a tax.^[12]

Petitioners argue that their leaseholds entitle them to enter the reservation and exempt them from further exercises of the Tribe's sovereign authority. Similarly, the dissent asserts that the Tribe has lost the power to tax petitioners' mining activities because it has leased to them the use of the mineral lands and such rights of access to the reservation as might be necessary to enjoy the leases. Post, at 186-190.^[13] However, this conclusion is not compelled by linking the taxing power to the power to exclude. Instead, it is based on additional assumptions and confusions about the consequences of the commercial arrangement between petitioners and the Tribe.

Most important, petitioners and the dissent confuse the Tribe's role as commercial partner with its role as sovereign.^[14] [146] This confusion relegates the powers of sovereignty to the bargaining process undertaken in each of the sovereign's commercial agreements. It is one thing to find that the Tribe has agreed to sell the right to use the land and take from it valuable minerals; it is quite another to find that the Tribe has abandoned its sovereign powers simply because it has not expressly reserved them through a contract.

Confusing these two results denigrates Indian sovereignty. Indeed, the dissent apparently views the tribal power to exclude, as well as the derivative authority to tax, as merely the power possessed by any individual landowner or any social group to attach conditions, including a "tax" or fee, to the entry by a stranger onto private land or into the social group, and not as a sovereign power. The dissent does pay lipservice to the established views that Indian tribes retain those fundamental attributes of sovereignty, including the power to tax transactions that occur on tribal lands, which have not been divested by Congress or by necessary implication of the tribe's dependent status, see Colville, 447 U. S., at 152, and that tribes "are a good deal more than `private, voluntary organizations.' " United States v. Mazurie, 419 U. S., at 557. However, in arguing that the Tribe somehow "lost" its power to tax petitioners by not including [147] a taxing provision in the original leases or otherwise notifying petitioners that the Tribe retained and might later exercise its sovereign right to tax them, the dissent attaches little significance to the sovereign nature of the tribal authority to tax, and it obviously views tribal authority as little more than a landowner's contractual right. This overly restrictive view of tribal sovereignty is further reflected in the dissent's refusal to apply established principles for determining whether other governmental bodies have waived a sovereign power through contract. See post, at 189, n. 50. See also infra, at 148.

Moreover, the dissent implies that the power to tax depends on the consent of the taxed as well as on the Tribe's power to exclude non-Indians. Whatever place consent may have in contractual matters and in the creation of democratic governments, it has little if any role in measuring the validity of an exercise of legitimate sovereign authority. Requiring the consent of the entrant deposits in the hands of the excludable non-Indian the source of the tribe's power, when the power instead derives from sovereignty itself. Only the Federal Government may limit a tribe's exercise of its sovereign authority. E. g., United States v. Wheeler, 435 U. S. 313, 322 (1978).^[15] Indian sovereignty is not conditioned on the assent of a nonmember; to the contrary, the nonmember's presence and conduct on Indian lands are conditioned by the limitations the tribe may choose to impose.

Viewed in this light, the absence of a reference to the tax in the leases themselves hardly impairs the Tribe's authority to impose the tax. Contractual arrangements remain subject to subsequent legislation by the presiding sovereign. See, e. g., Veix v. Sixth Ward Building & Loan Assn. of [148] Newark, 310 U. S. 32 (1940); Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398 (1934). Even where the contract at issue requires payment of a royalty for a license or franchise issued by the governmental entity, the government's power to tax remains unless it "has been specifically surrendered in terms which admit of no other reasonable interpretation." St. Louis v. United R. Co., 210 U. S. 266, 280 (1908).

To state that Indian sovereignty is different than that of Federal, State or local Governments, see post, at 189, n. 50, does not justify ignoring the principles announced by this Court for determining whether a sovereign has waived its taxing authority in cases involving city, state, and federal taxes imposed under similar circumstances. Each of these governments has different attributes of sovereignty, which also may derive from different sources. These differences, however, do not alter the principles for determining whether any of these governments has waived a sovereign power through contract, and we perceive no principled reason for holding that the different attributes of Indian sovereignty require different treatment in this regard. Without regard to its source, sovereign power, even when unexercised, is an enduring presence that governs all contracts subject to the sovereign's jurisdiction, and will remain intact unless surrendered in unmistakable terms.

No claim is asserted in this litigation, nor could one be, that petitioners' leases contain the clear and unmistakable surrender of taxing power required for its extinction. We could find a waiver of the Tribe's taxing power only if we inferred it from silence in the leases. To presume that a sovereign forever waives the right to exercise one of its sovereign powers unless it expressly reserves the right to exercise that power in a commercial agreement turns the concept of sovereignty on its head, and we do not adopt this analysis.^[16]

[149] C

The Tribe has the inherent power to impose the severance tax on petitioners, whether this power derives from the Tribe's power of self-government or from its power to exclude. Because Congress may limit tribal sovereignty, we now review petitioners' argument that Congress, when it enacted two federal Acts governing Indians and various pieces of federal energy legislation, deprived the Tribe of its authority to impose the severance tax.

In Colville, we concluded that the "widely held understanding within the Federal Government has always been that federal law to date has not worked a divestiture of Indian taxing power." 447 U. S., at 152 (emphasis added). Moreover, we noted that "[n]o federal statute cited to us shows any congressional departure from this view." Id., at 153. Likewise, petitioners can cite to no statute that specifically divests the Tribe of its power to impose the severance tax on their mining activities. Instead, petitioners argue that Congress implicitly took away this power when it enacted the Acts and various pieces of legislation on which petitioners rely. Before reviewing this argument, we reiterate here our admonition in Santa Clara Pueblo v. Martinez, 436 U. S. 49, 60 (1978): "a proper respect both for tribal sovereignty itself and for the plenary authority of Congress in this area cautions that we tread lightly in the absence of clear indications of legislative intent."

[150] Petitioners argue that Congress pre-empted the Tribe's power to impose a severance tax when it enacted the 1938 Act, 25 U. S. C. §§ 396a-396g. In essence, petitioners argue that the tax constitutes an additional burden on lessees that is inconsistent with the Act's regulatory scheme for leasing and developing oil and gas reserves on Indian land. This Act, and the regulations promulgated by the Department of the Interior for its enforcement, establish the procedures to be followed for leasing oil and gas interests on tribal lands. However, the proviso to 25 U. S. C. § 396b states that "the foregoing provisions shall in no manner restrict the right of tribes . . . to lease lands for mining purposes . . . in accordance with the provisions of any constitution and charter adopted by any Indian tribe pursuant to sections 461, 462, 463, [464-475, 476-478], and 479 of this title" (emphasis added).^[17] Therefore, this Act does not prohibit the Tribe from imposing a severance tax on petitioners' mining activities pursuant to its Revised Constitution, when both the Revised Constitution and the ordinance authorizing the tax are approved by the Secretary.^[18]

Petitioners also assert that the 1927 Act, 25 U. S. C. §§ 398a-398e, divested the Tribe's taxing power. We disagree. The 1927 Act permits state taxation of mineral lessees [151] on Executive Order reservations, but it indicates no change in the taxing power of the affected tribes. See 25 U. S. C. § 398c. Without mentioning the tribal authority to tax, the Act authorizes state taxation of royalties from mineral production on all Indian lands. Petitioners argue that the Act transferred the Indian power to tax mineral production to the States in exchange for the royalties assured the tribes. This claim not only lacks any supporting evidence in the legislative history, it also deviates from settled principles of taxation: different sovereigns can enjoy powers to tax the same transactions. Thus, the mere existence of state authority to tax does not deprive the Indian tribe of its power to tax. Fort Mojave Tribe v. County of San Bernardino, 543 F. 2d 1253 (CA9 1976), cert. denied, 430 U. S. 983 (1977). Cf. Colville, 447 U. S., at 158 ("There is no direct conflict between the state and tribal schemes, since each government is free to impose its taxes without ousting the other").^[19]

Finally, petitioners contend that tribal taxation of oil and gas conflicts with national energy policies, and therefore the tribal tax is pre-empted by federal law. Again, petitioners cite no specific federal statute restricting Indian sovereignty. Nor do they explain why state taxation of the same type of activity escapes the asserted conflict with federal policy. Cf. Commonwealth Edison Co. v. Montana, 453 U. S. 609 (1981). Indeed, rather than forbidding tribal severance taxes, Congress has included taxes imposed by an Indian [152] tribe in its definition of costs that may be recovered under federal energy pricing regulations. Natural Gas Policy Act of 1978, Pub. L. 95-621, §§ 110(a), (c)(1), 92 Stat. 3368, 15 U. S. C. §§ 3320(a), (c)(1) (1976 ed., Supp. IV). Although this inclusion may not reflect Congress' view with respect to the source of a tribe's power to impose a severance tax,^[20] it surely indicates that imposing such a tax would not contravene federal energy policy and that the tribal authority to do so is not implicitly divested by that Act.

We find no "clear indications" that Congress has implicitly deprived the Tribe of its power to impose the severance tax. In any event, if there were ambiguity on this point, the doubt would benefit the Tribe, for "[a]mbiguities in federal law have been construed generously in order to comport with . . . traditional notions of sovereignty and with the federal policy of encouraging tribal independence." White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 143-144 (1980). Accordingly, we find that the Federal Government has not divested the Tribe of its inherent authority to tax mining activities on its land, whether this authority derives from the Tribe's power of self-government or from its power to exclude.

III

Finding no defect in the Tribe's exercise of its taxing power, we now address petitioners' contention that the severance tax violates the "negative implications" of the Commerce Clause because it taxes an activity that is an integral [153] part of the flow of commerce, discriminates against interstate commerce, and imposes a multiple burden on interstate commerce. At the outset, we note that reviewing tribal action under the Interstate Commerce Clause is not without conceptual difficulties. E. g., nn. 21 and 24, infra. Apparently recognizing these difficulties, the Solicitor General, on behalf of the Secretary, argues that the language,^[21] the structure, and the purposes of the Commerce Clause support the conclusion that the Commerce Clause does not, of its own force, limit Indian tribes in their dealings with non-Indians. Brief for Secretary of Interior 35-40. The Solicitor General reasons that the Framers did not intend "the courts, through the Commerce Clause, to impose their own views of the proper relationship between Indians and non-Indians and to strike down measures adopted by a tribe with which the political departments of government had not seen fit to disagree." Id., at 39. Instead, where tribal legislation is inimical to the national welfare, the Solicitor asserts that the Framers contemplated that the remedies would be the negotiation or renegotiation of treaties, the enactment of legislation governing trade and other relations, or the exertion of superior force by the United States Government. Id., at 38-39. Using similar reasoning, the Solicitor suggests that if the Commerce Clause does impose restrictions on tribal activity, those restrictions must arise from the Indian Commerce Clause, and not its interstate counterpart. Id., at 40-43.

To date, however, this Court has relied on the Indian Commerce Clause as a shield to protect Indian tribes from state [154] and local interference, and has not relied on the Clause to authorize tribal regulation of commerce without any constitutional restraints. We see no need to break new ground in this area today: even if we assume that tribal action is subject to the limitations of the Interstate Commerce Clause, this tax does not violate the "negative implications" of that Clause.

A

A state tax may violate the "negative implications" of the Interstate Commerce Clause by unduly burdening or discriminating against interstate commerce. See, e. g., Commonwealth Edison Co. v. Montana, 453 U. S. 609 (1981); Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977). Judicial review of state taxes under the Interstate Commerce Clause is intended to ensure that States do not disrupt or burden interstate commerce when Congress' power remains unexercised: it protects the free flow of commerce, and thereby safeguards Congress' latent power from encroachment by the several States.

However, we only engage in this review when Congress has not acted or purported to act. See, e. g., Prudential Insurance Co. v. Benjamin, 328 U. S. 408, 421-427 (1946). Once Congress acts, courts are not free to review state taxes or other regulations under the dormant Commerce Clause. When Congress has struck the balance it deems appropriate, the courts are no longer needed to prevent States from burdening commerce, and it matters not that the courts would invalidate the state tax or regulation under the Commerce Clause in the absence of congressional action. See Prudential Insurance Co. v. Benjamin, supra, at 431.^[22] Courts are [155] final arbiters under the Commerce Clause only when Congress has not acted. See Japan Line, Ltd. v. County of Los Angeles, 441 U. S., at 454.

Here, Congress has affirmatively acted by providing a series of federal checkpoints that must be cleared before a tribal tax can take effect.^[23] Under the Indian Reorganization Act, 25 U. S. C. §§ 476, 477, a tribe must obtain approval from the Secretary before it adopts or revises its constitution to announce its intention to tax nonmembers. Further, before the ordinance imposing the severance tax challenged here could take effect, the Tribe was required again to obtain approval from the Secretary. See Revised Constitution of the Jicarilla Tribe, Art. XI, §§ 1(e), 2. Cf. 25 U. S. C. §§ 476, 477; 25 CFR § 171.29 (1980) (implementing the proviso to 25 U. S. C. § 396b, quoted in n. 15, supra).

As we noted earlier, the severance tax challenged by petitioners was enacted in accordance with this congressional scheme. Both the Tribe's Revised Constitution and the challenged tax ordinance received the requisite approval from the Secretary. This course of events fulfilled the administrative process established by Congress to monitor such exercises of tribal authority. As a result, this tribal tax comes to us in a [156] posture significantly different from a challenged state tax, which does not need specific federal approval to take effect, and which therefore requires, in the absence of congressional ratification, judicial review to ensure that it does not unduly burden or discriminate against interstate commerce. Judicial review of the Indian tax measure, in contrast, would duplicate the administrative review called for by the congressional scheme.

Finally, Congress is well aware that Indian tribes impose mineral severance taxes such as the one challenged by petitioners. See Natural Gas Policy Act of 1978, 15 U. S. C. §§ 3320(a), (c)(1) (1976 ed., Supp. IV). Congress, of course, retains plenary power to limit tribal taxing authority or to alter the current scheme under which the tribes may impose taxes. However, it is not our function nor our prerogative to strike down a tax that has traveled through the precise channels established by Congress, and has obtained the specific approval of the Secretary.

B

The tax challenged here would survive judicial scrutiny under the Interstate Commerce Clause, even if such scrutiny were necessary. In Complete Auto Transit, Inc. v. Brady, supra, at 279, we held that a state tax on activities connected to interstate commerce is sustainable if it "is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State." Petitioners do not question that the tax on the severance of minerals from the mines^[24] meets the first and the [157] second tests: the mining activities taxed pursuant to the ordinance occur entirely on reservation land. Furthermore, petitioners do not challenge the tax on the ground that the amount of the tax is not fairly related to the services provided by the Tribe. See Supplemental Brief for Petitioners in No. 80-15, pp. 11, 17-20.^[25]

Instead, petitioners focus their attack on the third factor, and argue that the tax discriminates against interstate commerce. In essence, petitioners argue that the language "sold or transported off the reservation" exempts from taxation minerals sold on the reservation, kept on the reservation for use by individual members of the Tribe, and minerals taken by the Tribe on the reservation as in-kind royalty. Although petitioners admit that no sales have occurred on the reservation to date, they argue that the Tribe might induce private industry to locate on the reservation to take advantage of this allegedly discriminatory taxing policy. We do not accept petitioners' arguments; instead, we agree with the Tribe, the Solicitor General, and the Court of Appeals that the tax is imposed on minerals sold on the reservation or transported off the reservation before sale. See 617 F. 2d, at 546. Cf. n. 22, supra.^[26] Under this interpretation, the tax does not [158] treat minerals transported away from the reservation differently than it treats minerals that might be sold on the reservation. Nor does the Tribe's tax ordinance exempt minerals ultimately received by individual members of the Tribe. The ordinance does exempt minerals received by the Tribe as in-kind payments on the leases and used for tribal purposes,^[27] but this exemption merely avoids the administrative make-work that would ensue if the Tribe, as local government, taxed the amount of minerals that the Tribe, as commercial partner, received in royalty payments. Therefore, this exemption cannot be deemed a discriminatory preference for local commerce.^[28]

[159] IV

In Worcester v. Georgia, 6 Pet., at 559, Chief Justice Marshall observed that Indian tribes had "always been considered as distinct, independent political communities, retaining their original natural rights." Although the tribes are subject to the authority of the Federal Government, the "weaker power does not surrender its independence — its right to self-government, by associating with a stronger, and taking its protection." Id., at 561. Adhering to this understanding, we conclude that the Tribe did not surrender its authority to tax the mining activities of petitioners, whether this authority is deemed to arise from the Tribe's inherent power of self-government or from its inherent power to exclude nonmembers. Therefore, the Tribe may enforce its severance tax unless and until Congress divests this power, an action that Congress has not taken to date. Finally, the severance tax imposed by the Tribe cannot be invalidated on the ground that it violates the "negative implications" of the Commerce Clause.

Affirmed.

[159B] JUSTICE STEVENS, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, dissenting.

The Indian tribes that occupied North America before Europeans settled the continent were unquestionably sovereigns. They ruled themselves and they exercised dominion over the lands that nourished them. Many of those tribes, and some attributes of their sovereignty, survive today. This Court, since its earliest days, has had the task of identifying [160] those inherent sovereign powers that survived the creation of a new Nation and the introduction of an entirely new system of laws applicable to both Indians and non-Indians.

In performing that task, this Court has guarded carefully the unique status of Indian tribes within this Nation. Over its own members, an Indian tribe's sovereign powers are virtually unlimited; the incorporation of the tribe into the United States has done little to change internal tribal relations. In becoming part of the United States, however, the tribes yielded their status as independent nations; Indians and non-Indians alike answered to the authority of a new Nation, organized under a new Constitution based on democratic principles of representative government. In that new system of government, Indian tribes were afforded no general powers over citizens of the United States. Many tribes, however, were granted a power unknown to any other sovereignty in this Nation: a power to exclude nonmembers entirely from territory reserved for the tribe. Incident to this basic power to exclude, the tribes exercise limited powers of governance over nonmembers, though those nonmembers have no voice in tribal government. Since a tribe may exclude nonmembers entirely from tribal territory, the tribe necessarily may impose conditions on a right of entry granted to a nonmember to do business on the reservation.

The question presented in these cases is whether, after a tribe has granted nonmembers access to its reservation on specified terms and conditions to engage in an economic venture of mutual benefit, the tribe may impose a tax on the nonmembers' share of benefits derived from the venture. The Court today holds that it may do so. In my opinion this holding distorts the very concept of tribal sovereignty. Because I am convinced that the Court's treatment of these important cases gives inadequate attention to the critical difference between a tribe's powers over its own members and its powers over nonmembers, I set forth my views at greater length than is normally appropriate in a dissenting opinion.

[161] I

The 2,100 members of the Jicarilla Apache Tribe live on a reservation in northern New Mexico.^[29] The area encompassed by the reservation became a part of the United States in 1848 when the Mexican War ended in the Treaty of Guadalupe Hidalgo. See 9 Stat. 922. Between 1848 and 1871, the United States did not enter into any treaty with the Jicarillas or enact any special legislation relating to them; in 1871 Congress outlawed any future treaties with Indian tribes.^[30] In 1887, President Cleveland issued an Executive Order setting aside a tract of public lands in the Territory of New Mexico "as a reservation for the use and occupation of the Jicarilla Apache Indians." Except for a provision protecting bona fide settlers from deprivation of previously acquired rights, the Executive Order contained no special rules applicable to the reservation.^[31] The mineral leases at issue in this case [162] were granted by the Jicarilla Apache Tribe on these reservation lands.

The record does not indicate whether any leasing activity occurred on the Jicarilla Reservation between 1887 and 1953. During that period, however, the authority of Indian tribes to enter into mineral leases was clarified. In 1891 Congress passed a statute permitting the mineral leasing of Indian lands. Act of Feb. 28, 1891, § 3, 26 Stat. 795, 25 U. S. C. § 397. Because the statute applied only to lands "occupied by Indians who have bought and paid for the same," the statute was interpreted to be inapplicable to reservations created by Executive Order. See British-American Oil Producing Co. v. Board of Equalization, 299 U. S. 159, 161-162, 164. In 1922, the Secretary of the Interior took the position that Indian reservations created by Executive Order were public lands and that Indians residing on those reservations had no right to share in royalties derived from oil and gas leases. 49 I. D. 139.^[32]

[163] In 1927, Congress enacted a statute expressly providing that unallotted lands on any Indian reservation created by Executive Order could be leased for oil and gas mining purposes with the approval of the Secretary of the Interior.^[33] The statute directed that all rentals, royalties, or bonuses for such leases should be paid to the Treasurer of the United States for the benefit of the tribe for which the reservation was created.^[34] The statute further provided that state taxes [164] could be levied upon the output of such oil and gas leases,^[35] but made no mention of the possibility that the Indian tribes, in addition to receiving royalties, could impose taxes on the output.^[36]

In 1934, Congress enacted the Indian Reorganization Act, 48 Stat. 984, 25 U. S. C. § 461 et seq., which authorized any Indian tribe residing on a reservation to adopt a constitution and bylaws, subject to the approval of the Secretary of the Interior. The Act provided that, "[i]n addition to all powers vested in any Indian tribe or tribal council by existing law," the constitution should vest certain specific powers, such as the power to employ legal counsel, in the tribe.^[37] The Act [165] also authorized the Secretary of the Interior to issue a charter of incorporation to an Indian tribe, and provided that the charter could convey to the tribe the power to purchase, manage, and dispose of its property.^[38] The 1934 Act was silent concerning the right of an Indian tribe to levy taxes.^[39] The first Jicarilla Apache Constitution was approved by the Secretary of the Interior in 1937.^[40]

[166] In 1953, the Tribe executed an oil and gas lease with the Phillips Petroleum Co. App. 22-30. The lease, prepared on a form provided by the Bureau of Indian Affairs of the Department of the Interior, presumably is typical of later leases executed between other companies and the Tribe.^[41] The lease provides that in return for certain rents, royalties, and a cash bonus of $71,345.99, all to be paid to the treasurer of the Tribe, the Tribe as lessor granted to the lessee "the exclusive right and privilege to drill for, mine, extract, remove, and dispose of all the oil and natural gas deposits in or under" the described tracts of land, together with the right to construct and maintain buildings, plants, tanks, and other necessary structures on the surface. Id., at 22-23. The lease is for a term of 10 years following approval by the Secretary of the Interior "and as much longer thereafter as oil and/or gas is produced in paying quantities from said land." Ibid. The lessee is obligated to use reasonable diligence in the development of the property, and to pay an annual rental of $1.25 per acre and a royalty of 12 1/2% "of the value or amount" of all oil and gas "produced and saved" from the leased land. Id., at 24, 26. Oil and gas used by the lessee for development and operation of the lease is royalty-free. Id., at 24. The Tribe reserved the rights to use free of charge sufficient gas for any school or other building owned by the Tribe on the leased premises, and to take its royalty in kind. Id., at 27-28.

The lease contains no reference to the payment of taxes. The lessee does, however, agree to comply with all regulations of the Secretary of the Interior

"now or hereafter in force relative to such leases: Provided, That no regulation hereafter approved shall effect [167] a change in rate or royalty or annual rental herein specified without the written consent of the parties to this lease." Id., at 27.

The lease was approved by the Commissioner of Indian Affairs on behalf of the Secretary of the Interior. Id., at 32. Both of the 1953 leases described in the record are still producing.

In 1968, the Tribe adopted a Revised Constitution giving its Tribal Council authority, subject to approval by the Secretary of the Interior, "to impose taxes and fees on non-members of the tribe doing business on the reservation."^[42] Eight years later, the Tribal Council enacted an Oil and Gas Severance Tax Ordinance, which was approved by the Secretary of the Interior. The tribal ordinance provides that a severance tax "is imposed on any oil and natural gas severed, saved and removed from Tribal lands . . . ." Id., at 38. The rate of the tax is $0.05 per million Btu's of gas produced on the reservation and sold or transported off the reservation and $0.29 per barrel of crude or condensate produced on the reservation and sold or transported off the reservation. Id., at 39. Royalty gas or oil taken by the Tribe, as well as gas or oil used by the Tribe, is exempt from the tax. Ibid. Thus the entire burden of the tax apparently will fall on nonmembers of the Tribe. The tax, if sustained, will produce over $2 million in revenues annually.^[43]

[168] II

The powers possessed by Indian tribes stem from three sources: federal statutes, treaties, and the tribe's inherent sovereignty. Neither the Tribe nor the Federal Government seeks to justify the Jicarilla Tribe's severance tax on the basis of any federal statute,^[44] and the Jicarilla Apaches, who reside on an Executive Order reservation, executed no treaty with the United States from which they derive sovereign powers. Therefore, if the severance tax is valid, it must be as an exercise of the Tribe's inherent sovereignty.

Tribal sovereignty is neither derived from nor protected by the Constitution.^[45] Indian tribes have, however, retained many of the powers of self-government that they possessed at the time of their incorporation into the United States. As stated by Justice M'Lean in Worcester v. Georgia, 6 Pet. 515, 580 (concurring opinion):

"At no time has the sovereignty of the country been recognised as existing in the Indians, but they have been always admitted to possess many of the attributes of sovereignty. All the rights which belong to self-government have been recognised as vested in them."

[169] Similarly, the Court in United States v. Kagama, 118 U. S. 375, 381-382, stated:

"[The Indians] were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided."

Two distinct principles emerge from these early statements of tribal sovereignty: that Indian tribes possess broad powers of self-governance over tribal members, but that tribes do not possess the same attributes of sovereignty that the Federal Government and the several States enjoy.^[46] In determining the extent of the sovereign powers that the tribes retained in submitting to the authority of the United States, [170] this Court has recognized a fundamental distinction between the right of the tribes to govern their own internal affairs and the right to exercise powers affecting nonmembers of the tribe.

The Court has been careful to protect the tribes from interference with tribal control over their own members. The Court has recognized that tribes have the power to prosecute members for violations of tribal criminal law, and that this power is an inherent attribute of tribal sovereignty. United States v. Wheeler, 435 U. S. 313. The tribes also retain the power to create substantive law governing internal tribal affairs. Tribes may define rules of membership, and thus determine who is entitled to the benefits of tribal citizenship, Roff v. Burney, 168 U. S. 218; establish rules of inheritance, which supersede applicable state law, Jones v. Meehan, 175 U. S. 1, 29; and determine rights to custody of a child of divorced parents of the tribe, and thus pre-empt adoption proceedings brought in state court. Fisher v. District Court, 424 U. S. 382. This substantive tribal law may be enforced in tribal courts. Williams v. Lee, 358 U. S. 217; Fisher v. District Court, supra.

In many respects, the Indian tribes' sovereignty over their own members is significantly greater than the States' powers over their own citizens. Tribes may enforce discriminatory rules that would be intolerable in a non-Indian community. The equal protection components of the Fifth and Fourteenth Amendments, which limit federal or state authority, do not similarly limit tribal power. See Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56, and n. 7.^[47] The criminal jurisdiction of the tribes over their own members is similarly unconstrained [171] by constitutional limitations applicable to the States and the Federal Government.^[48] Thus the use of the word "sovereign" to characterize tribal powers of self-government is surely appropriate.

In sharp contrast to the tribes' broad powers over their own members, tribal powers over nonmembers have always been narrowly confined.^[49] The Court has emphasized that "exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation." Montana v. United States, 450 U. S. 544, 564. In Oliphant v. Suquamish Indian Tribe, 435 U. S. 191, the Court held that tribes have no criminal jurisdiction over crimes committed by nonmembers within the reservations.^[50] In Montana v. United States, supra, the Court held that the Crow Tribe could not prohibit hunting and fishing by nonmembers on reservation [172] land no longer owned by the Tribe, and indicated that the principle underlying Oliphant — that tribes possess limited power over nonmembers — was applicable in a civil as well as a criminal context. As stated by the Court, "[t]hough Oliphant only determined inherent tribal authority in criminal matters, the principles on which it relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." Montana v. United States, supra, at 565 (footnote omitted).^[51]

The tribes' authority to enact legislation affecting nonmembers is therefore of a different character than their broad power to control internal tribal affairs. This difference is [173] consistent with the fundamental principle that "[i]n this Nation each sovereign governs only with the consent of the governed." Nevada v. Hall, 440 U. S. 410, 426. Since nonmembers are excluded from participation in tribal government, the powers that may be exercised over them are appropriately limited. Certainly, tribal authority over nonmembers — including the power to tax — is not unprecedented. An examination of cases that have upheld this power, however, demonstrates that the power to impose such a tax derives solely from the tribes' power to exclude nonmembers entirely from territory that has been reserved for the tribe. This "power to exclude" logically has been held to include the lesser power to attach conditions on a right of entry granted by the tribe to a nonmember to engage in particular activities within the reservation.

III

A study of the source of the tribes' power to tax nonmembers must focus on the extent of the tribal power to tax that existed in 1934, when the Indian Reorganization Act was enacted to prevent further erosion of Indian sovereign powers.^[52] [174] Shortly after the Act was passed, the Solicitor of the Department of the Interior issued a formal opinion setting forth his understanding of the powers that might be secured by an Indian tribe and incorporated in its constitution by virtue of the reference in the Reorganization Act to powers vested in an Indian tribe "by existing law."^[53] Solicitor Margold concluded [175] that among those powers was a power of taxation; his opinion described the permissible exercise of that power:

"Except where Congress has provided otherwise, this power may be exercised over members of the tribe and over nonmembers, so far as such nonmembers may accept privileges of trade, residence, etc., to which taxes may be attached as conditions." 55 I. D. 14, 46 (1934).

Solicitor Margold cited three decisions in support of this opinion. These three cases, Buster v. Wright, 135 F. 947 (CA8 1905), appeal dism'd, 203 U. S. 599; Morris v. Hitchcock, 194 U. S. 384; and Maxey v. Wright, 3 Ind. T. 243, 54 S. W. 807 (Ct. App. Ind. T.), aff'd, 105 F. 1003 (CA8 1900), were decided shortly after the turn of the century and are the three leading cases considering the power of an Indian tribe to assess taxes against nonmembers.^[54] The three cases are similar in result and in their reasoning. In each the court upheld the tax; in each the court relied on the Tribe's power to exclude non-Indians from its reservation and concluded that the Tribe could condition entry or continued presence within the reservation on the payment of a license fee or tax; and in each the court assumed that the ultimate remedy for nonpayment of the tax would be exclusion from the reservation.

In the first of these cases, Maxey v. Wright, the Court of Appeals of Indian Territory affirmed an order by a federal territorial court dismissing a complaint filed by non-Indian lawyers practicing in the Creek Nation. The complaint sought to enjoin the Indian agent for the Five Civilized Tribes from collecting an annual occupation tax of $25 assessed on each non-Indian lawyer residing and practicing [176] his profession on the reservation. In rejecting the attorneys' claim, the Court of Appeals first analyzed the relevant treaties between the United States and the Creeks and noted that the Indians had "carefully guarded their sovereignty, and their right to admit, and consequently to exclude, all white persons, except such as are named in the treaty." 3 Ind. T., at 247, 54 S. W., at 809. The court noted that the United States had agreed that all persons who were not expressly excepted and were present in the Creek Nation "without the consent of that Nation [were] deemed to be intruders," and that the Government had "pledge[d] itself to remove them." Id., at 248, 54 S. W., at 809. Because attorneys were not within any excepted class,^[55] the court concluded that the Tribe had the authority to require them either to pay the license fee or to be removed as "intruders."^[56] The court held:

[177] "[T]he Creek nation had the power to impose this condition or occupation tax, if it may be so called, upon attorneys at law (white men) residing and practicing their profession in the Indian Territory. And inasmuch as the government of the United States, in the treaty, had declared that all persons not authorized by its terms to reside in the Creek Nation should be deemed to be intruders, and had obligated itself to remove all such persons from the Creek Nation, the remedy to enforce this provision of the treaty was a removal by the United States from the Creek Nation of the delinquent as an intruder." Id., at 250, 54 S. W., at 809-810.^[57]

[178] Morris v. Hitchcock, 194 U. S. 384, decided by this Court in 1904, also arose from a challenge to an enactment of one of the Five Civilized Tribes that required non-Indians to pay annual permit fees. The complainants owned cattle and horses that were grazing on land in the Chickasaw Nation pursuant to contracts with individual members of the Tribe. Complainants filed suit in the District of Columbia seeking an injunction preventing federal officials from removing their cattle and horses from the Indian Territory for failure to pay the permit fees assessed by the Tribe. An order dismissing the complaint was affirmed by the Court of Appeals for the District of Columbia and by this Court.

This Court's opinion first noted that treaties between the United States and the Chickasaw Nation had granted the Tribe the right "to control the presence within the territory assigned to it of persons who might otherwise be regarded as intruders,"^[58] and that the United States had assumed the obligation of protecting the Indians from aggression by persons not subject to their jurisdiction. Id., at 389. The Court then reviewed similar legislation that had been adopted by the Chickasaw Nation in 1876,^[59] and noted that in 1879 the Senate Committee on the Judiciary had specifically referred to the 1876 legislation and expressed an opinion that it was valid. Id., at 389-390.

The Court also reviewed two opinions of the Attorney General that had concluded that the power of the Chickasaw to impose permit fees had not been withdrawn by Congress.^[60] [179] Although Congress subsequently had created an express exception in favor of owners of town lots and thus protected them from eviction as intruders, the Court noted that no comparable protection had been given to owners of cattle and horses. Id., at 392-393. On the basis of these authorities, the Court concluded that the Chickasaw legislation imposing grazing fees was valid.

In the third case, Buster v. Wright, 135 F. 947 (CA8 1905), nonmembers of the Creek Nation brought suit against federal inspectors to enjoin them from stopping the plaintiffs from doing business within the reservation; the nonmembers feared such action because they had refused to pay a permit tax assessed on traders by the Tribe. The Court of Appeals relied on Morris v. Hitchcock and Maxey v. Wright in upholding the tax. The opinion for the court by Judge Walter H. Sanborn emphasized that the tax was in the nature of a condition precedent to transacting business within the reservation and that the plaintiffs had ample notice of the tax:

[180] "The permit tax of the Creek Nation, which is the subject of this controversy, is the annual price fixed by the act of its national council, which was approved by the President of the United States in the year 1900, for the privilege which it offers to those who are not citizens of its nation of trading within its borders. The payment of this tax is a mere condition of the exercise of this privilege. No noncitizen is required to exercise the privilege or to pay the tax. He may refrain from the one and he remains free from liability for the other. Thus, without entering upon an extended discussion or consideration of the question whether this charge is technically a license or a tax, the fact appears that it partakes far more of the nature of a license than of an ordinary tax, because it has the optional feature of the former and lacks the compulsory attribute of the latter.

"Repeated decisions of the courts, numerous opinions of the Attorneys General, and the practice of years place beyond debate the propositions that prior to March 1, 1901, the Creek Nation had lawful authority to require the payment of this tax as a condition precedent to the exercise of the privilege of trading within its borders, and that the executive department of the government of the United States had plenary power to enforce its payment through the Secretary of the Interior and his subordinates, the Indian inspector, Indian agent, and Indian police." 135 F., at 949-950.

The court noted that the traders, who had purchased town lots of the Creek Nation pursuant to a 1901 agreement between the Creeks and the United States, could not rely on that agreement as an implied divestiture of a pre-existing power to tax.^[61] The court held that even though noncitizens [181] of the Tribe had acquired lawful ownership of lots pursuant to the 1901 agreement and could not be evicted from those lots, they had no right to conduct business within the reservation without paying the permit taxes.^[62]

Prior to the enactment of the Indian Reorganization Act in 1934, these three cases were the only judicial decisions considering the power of an Indian tribe to impose a tax on nonmembers.^[63] These cases demonstrate that the power of an [182] Indian tribe to impose a tax solely on nonmembers doing business on the reservation derives from the tribe's power to exclude those persons entirely from tribal lands or, in the alternative, to impose lesser restrictions and conditions on a right of entry granted to conduct business on the reservation.^[64] This interpretation is supported by the fact that the [183] remedy for the nonpayment of the tax in all three cases was exclusion from the reservation.^[65]

As I have noted, a limitation on the power of Indian tribes to tax nonmembers is not simply an archaic concept derived from three old cases that has no basis in logic or equity. Tribal powers over nonmembers are appropriately limited because nonmembers are foreclosed from participation in tribal government. If the power to tax is limited to situations in which the tribe has the power to exclude, then the nonmember is subjected to the tribe's jurisdiction only if he accepts the conditions of entry imposed by the tribe.^[66] The limited source of the power to tax nonmembers — the power to exclude intruders — is thus consistent with this Court's recognition [184] of the limited character of the power of Indian tribes over nonmembers in general.^[67] The proper source of the taxing authority asserted by the Jicarilla Apache Tribe in these cases, therefore, is not the Tribe's inherent power of self-government, but rather its power over the territory that has been set apart for its use and occupation.^[68]

This conclusion is consistent with our recent decision in Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134. In that case we held that a tribal tax on cigarettes sold on the reservations of the Colville, Makah, and Lummi Tribes to nonmembers of the Tribes was a permissible [185] exercise of the Tribes' retained sovereign power to tax.^[69] We recognized that the power to tax non-Indians entering the reservation had not been divested by virtue of the Tribes' dependent status and that no overriding federal interest would be frustrated by the tribal taxation. The Court quoted with approval, as an indication of the Executive Branch's understanding of the taxing power, Solicitor Margold's 1934 opinion. The Court noted further that "[f]ederal courts also have acknowledged tribal power to tax non-Indians entering the reservation to engage in economic activity" and cited Buster v. Wright and Morris v. Hitchcock. 447 U. S., at 153.^[70] The tax in Colville, which was applied to nonmembers who entered the reservation and sought to purchase cigarettes, is clearly valid under the rationale that the tribes' power to tax derives from the right to exclude nonmembers from the reservation and the lesser right to attach conditions on the entry of such nonmembers seeking to do business there.^[71] Colville is consistent with the principles set forth above. The power of Indian tribes to tax nonmembers stems from the tribes' power to exclude those nonmembers; any exercise of this power must be consistent with its source.^[72]

[186] IV

The power to exclude petitioners would have supported the imposition of a discriminatory tribal tax on petitioners when they sought to enter the Jicarilla Apache Reservation to explore for minerals. Moreover, even if no tax had been imposed at the time of initial entry, a discriminatory severance tax could have been imposed as a condition attached to the grant of the privilege of extracting minerals from the earth.^[73] But the Tribe did not impose any tax prior to petitioners' entry or as a condition attached to the privileges granted by the leases in 1953. As a result, the tax imposed in 1976 is not valid unless the Tribe retained its power either to exclude petitioners from the reservation or to prohibit them from continuing to extract oil and gas from reservation lands.

The leases executed by the Tribe and petitioners are clearly valid and binding on both parties. The Tribe does not contend that the leases were not the product of arm's-length bargaining. Moreover, the leases were executed on a form prepared by the Department of the Interior, the Department gave specific approval to the terms of the leases, and they were executed pursuant to explicit congressional authority.^[74] Under the leases petitioners clearly have the [187] right to remain on the reservation to do business for the duration of the contracts.^[75]

There is no basis for a claim that exercise of the mining rights granted by the leases was subject to an additional, unstated condition concerning the payment of severance taxes.^[76] [188] At the time the leases contained in the record were executed, the Jicarilla Apache Constitution contained no taxing authorization whatever; the severance tax ordinance was not enacted until many years after all lessees had been granted an unlimited right to extract oil and gas from the reservation. In addition, the written leases unambiguously stated:

"[N]o regulation hereafter approved shall effect a change in rate or royalty or annual rental herein specified without the written consent of the parties to this lease." App. 27.

Nor can it be said that notice of an inherent right to tax could have been gleaned from relevant statutory enactments. When Congress enacted legislation in 1927 granting the Indians the royalty income from oil and gas leases on reservations created by Executive Order, it neither authorized nor prohibited the imposition of any taxes by the tribes. Although the absence of such reference does not indicate that Congress pre-empted the right of the tribes to impose such a tax,^[77] the lack of any mention of tribal severance taxes defeats the argument [189] that all parties were aware as a matter of law that a severance tax could be imposed at any time as a condition to the continued performance of a mineral lease.

Thus, nothing in the leases themselves or in any Act of Congress conveyed an indication that petitioners could accept the rights conferred by the leases only by accepting a condition that they pay any subsequently enacted severance tax. Nor could such a condition be presumed from prior taxing activity of the Tribe. In my opinion it is clear that the parties negotiated the leases in question with absolutely no expectation that a severance tax could later be imposed; in the contemplation of the parties, the conditions governing petitioners' right to extract oil and gas were not subject to change during the terms of the agreements. There simply is no support for the proposition that the Tribe retained the power in the leases to impose an additional condition on petitioners' right to enter the reservation and extract oil and gas from reservation lands. Since that authority was not retained, the Tribe does not now have the power to alter unilaterally the terms of the agreement and impose an additional burden on petitioners' right to do business on the reservation.^[78]

[190] In these cases, the Tribe seeks to impose a tax on the very activity that the leases granted petitioners the right to undertake. As Solicitor Margold wrote long ago:

"Over tribal lands, the tribe has the rights of a landowner as well as the rights of a local government, dominion as well as sovereignty. But on all the lands of the reservation, whether owned by the tribe, by members thereof, or by outsiders, the tribe has the sovereign power of determining the conditions upon which persons shall be permitted to enter its domain, to reside therein, and to do business, provided only such determination is consistent with applicable Federal laws and does not infringe any vested rights of persons now occupying reservation land under lawful authority." 55 I. D., at 50 (emphasis added).

Petitioners were granted authority by the Tribe to extract oil and gas from reservation lands. The Tribe now seeks to change retroactively the conditions of that authority. These petitioners happen to be prosperous oil companies. Moreover, it may be sound policy to find additional sources of revenue to better the economic conditions of many Indian tribes. If this retroactive imposition of a tax on oil companies is permissible, however, an Indian tribe may with equal legitimacy contract with outsiders for the construction of a school or a hospital, or for the rendition of medical or technical services, and then — after the contract is partially performed — change the terms of the bargain by imposing a gross receipts tax on the outsider. If the Court is willing to ignore the risk of such unfair treatment of a local contractor or a local doctor because the Secretary of the Interior has the power to veto a tribal tax, it must equate the unbridled discretion of a political appointee with the protection afforded by rules of law. That equation is unacceptable to me. Neither wealth, political opportunity, nor past transgressions can justify denying any person the protection of the law.

[1] Together with No. 80-15, Amoco Production Co. et al. v. Jicarilla Apache Tribe et al., also on certiorari to the same court.

[2] Briefs of amici curiae urging reversal were filed by Helena S. Maclay, Deirdre Boggs, and Bruce McEvoy, Special Assistant Attorneys General, for the State of Montana; by Bruce L. Herr, John B. Draper, Allen I. Olson, Attorney General of North Dakota, Albert R. Hausauer, Special Assistant Attorney General, Robert B. Hansen, Attorney General of Utah, Richard L. Dewsnup and Michael Quealy, Assistant Attorneys General, John D. Troughton, Attorney General of Wyoming, and Ron Arnold, Assistant Attorney General, for the States of New Mexico et al.; by Slade Gorton, Attorney General, and Timothy Malone, Assistant Attorney General, for the State of Washington; by James G. Watt and William H. Mellor III for the Mountain States Legal Foundation; by Frederick J. Martone for the Salt River Project Agricultural Improvement and Power District et al.; by Edward L. Barrett, Jr., Richard C. Cahoon, Dennis McCarthy, and Arthur H. Nielsen, for Shell Oil Co. et al.; and by George J. Miller for Westmoreland Resources, Inc.

[3] See 1 C. Kappler, Indian Affairs, Laws and Treaties 875 (1904) (Order of President Cleveland). Two earlier Orders setting aside land for the Tribe had been canceled. See id.,at 874-875 (Orders of Presidents Hayes and Grant). The boundaries of the reservation were redefined or clarified by Executive Orders issued by President Theodore Roosevelt on November 11, 1907, and January 28, 1908, and by President Taft on February 17, 1912. See 3 C. Kappler, Indian Affairs, Laws and Treaties 681, 682, 684, 685 (1913).

The fact that the Jicarilla Apache Reservation was established by Executive Order rather than by treaty or statute does not affect our analysis; the Tribe's sovereign power is not affected by the manner in which its reservation was created. E. g., Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134 (1980).

[4] The proviso reads as follows: "this order shall not be so construed as to deprive any bona fide settler of any valid rights he may have acquired under the law of the United States providing for the disposition of the public domain." 1 Kappler, supra, at 875.

[5] The Tribe is also chartered under the Indian Reorganization Act of 1934, ch. 576, 48 Stat. 988, 25 U. S. C. § 477, which permits the Secretary to issue to an Indian tribe a charter of incorporation that may give the tribe the power to purchase, manage, operate, and dispose of its property.

[6] Two judges dissented. Both argued that tribal sovereignty does not encompass the power to tax non-Indian lessees, 617 F. 2d, at 551-556 (Seth, C. J., dissenting); id., at 556-565 (Barrett, J., dissenting) (also arguing the tax violates the Commerce Clause).

[7] Through various Acts governing Indian tribes, Congress has expressed the purpose of "fostering tribal self-government." Colville, 447 U. S., at 155. We agree with Judge McKay's observation that "[i]t simply does not make sense to expect the tribes to carry out municipal functions approved and mandated by Congress without being able to exercise at least minimal taxing powers, whether they take the form of real estate taxes, leasehold taxes or severance taxes." 617 F. 2d, at 550 (McKay, J., concurring).

[8] Moreover, in its revision of the classic treatise on Indian Law, the Department of the Interior advances the view that the Indian tribes' power to tax is not limited by the power to exclude. See U. S. Solicitor for Dept. of Interior, Federal Indian Law 438 (1958) ("The power to tax does not depend upon the power to remove and has been upheld where there was no power in the tribe to remove the taxpayer from the tribal jurisdiction") (footnote omitted). See also F. Cohen, Handbook of Federal Indian Law 142 (1942) ("One of the powers essential to the maintenance of any government is the power to levy taxes. That this power is an inherent attribute of tribal sovereignty which continues unless withdrawn or limited by treaty or by act of Congress is a proposition which has never been successfully disputed") (footnote omitted).

[9] The governing treaty in Maxey v. Wrightrestricted the tribal right of self-government and jurisdiction to members of the Creek or Seminole Tribes. The court relied, at least in part, on opinions of the Attorney General interpreting this treaty. For example, one such opinion stated that, whatever the meaning of the clause limiting to tribal members the Tribes' unrestricted rights of self-government and jurisdiction, it did

" `not limit the right of these tribes to pass upon the question, who . . . shall share their occupancy, and upon what terms. That is a question which all private persons are allowed to decide for themselves; and even wild animals, not men, have a certain respect paid to the instinct which in this respect they share with man. The serious words "jurisdiction" and "self-government" are scarcely appropriate to the right of a hotel keeper to prescribe rules and charges for persons who become his fellow occupants.' " 3 Ind. T., at 250, 54 S. W., at 809 (quoting 18 Op. Atty. Gen. 4, 36, 37 (1884)).

The court, as well as the opinion of the Attorney General, found that the Tribes' "natural instinct" to set terms on occupancy was unaltered by the treaty. Neither the court nor the Attorney General adressed the scope of Indian sovereignty when unlimited by treaty; instead, they identified a tribe's right, as a social group, to exclude intruders and place conditions on their occupancy. The court's dependence on this reasoning hardly bears on the more general question posed here: what is the source of the Indian tribes' sovereign power to tax absent a restriction by treaty or other federal law?

[10] Both the classic treatise on Indian law and its subsequent revision by the Department of the Interior, see n. 6, supra, agree with this reading of Buster v. Wright. Federal Indian Law, supra n. 6, at 438; Cohen, supra n. 6, at 142 (both citing Buster v. Wright for the proposition that the power to tax is an inherent sovereign power not dependent on the power to exclude).

[11] See also Barta v. Oglala Sioux Tribe of Pine Ridge Reservation, 259 F. 2d 553 (CA8 1958) (lessees of tribal lands subject to Indian tax on use of land).

[12] Here, the leases extend for as long as minerals are produced in paying quantities, in other words, until the resources are depleted. Thus, under the dissent's approach, the Tribe would never have the power to tax petitioners regardless of the financial burden to the Tribe of providing and maintaining governmental services for the benefit of petitioners.

[13] But see Buster v. Wright,135 F., at 958:

"The ultimate conclusion of the whole matter is that purchasers of lots in town sites in towns or cities within the original limits of the Creek Nation, who are in lawful possession of their lots, are still subject to the laws of that nation prescribing permit taxes for the exercise by noncitizens of the privilege of conducting business in those towns . . . ."

[14]In contrast, the 1958 treatise on Indian law written by the United States Solicitor for the Department of the Interior recognized and distinguished the scope of these two roles when it embraced as the "present state of the law" the following summary:

" `Over tribal lands, the tribe has the rights of a landowner as well as the rights of a local government, dominion as well as sovereignty. But over all the lands of the reservation, whether owned by the tribe, by members thereof, or by outsiders, the tribe has the sovereign power of determining the conditions upon which persons shall be permitted to enter its domain, to reside therein, and to do business, provided only such determination is consistent with applicable Federal laws and does not infringe any vested rights of persons now occupying reservation lands under lawful authority.' " Federal Indian Law, supra n. 6, at 439 (quoting Solicitor's Opinion of Oct. 25, 1934) (emphasis added).

See Cohen, supra n. 6, at 143.

[15] See also P. Maxfield, M. Dieterich, & F. Trelease, Natural Resources Law on American Indian Lands 4-6 (1977). Federal limitations on tribal sovereignty can also occur when the exercise of tribal sovereignty would be inconsistent with overriding national interests. See Colville, 447 U. S., at 153. This concern is not presented here. See ibid.

[16] Petitioners and the dissent also argue that we should infer a waiver of the taxing power from silence in the Tribe's original Constitution. Although it is true that the Constitution in force when petitioners signed their leases did not include a provision specifically authorizing a severance tax, neither the Tribe's Constitution nor the Federal Constitution is the font of any sovereign power of the Indian tribes. E. g., Iron Crow v. Oglala Sioux Tribe of Pine Ridge Reservation, 231 F. 2d 89, 94 (CA8 1956); Buster v. Wright, 135 F., at 950. Because the Tribe retains all inherent attributes of sovereignty that have not been divested by the Federal Government, the proper inference from silence on this point is that the sovereign power to tax remains intact. The Tribe's Constitution was amended to authorize the tax before the tax was imposed, and this is the critical event necessary to effectuate the tax. See Barta v. Oglala Sioux Tribe of Pine Ridge Reservation, 259 F. 2d, at 554, 556; Iron Crow v. Oglala Sioux Tribe of Pine Ridge Reservation, supra, at 99.

[17]The Secretary has implemented the substance of this proviso by the following regulation:

"The regulations in this part may be superseded by the provisions of any tribal constitution, bylaw or charter issued pursuant to the Indian Reorganization Act of June 18, 1934 (48 Stat. 984; 25 U. S. C. 461-479), . . . or by ordinance, resolution or other action authorized under such constitution, by law or charter. The regulations in this part, in so far as they are not so superseded, shall apply to leases made by organized tribes if the validity of the lease depends upon the approval of the Secretary of the Interior." 25 CFR § 171.29 (1980).

[18] In arguing that the 1938 Act was intended to pre-empt the severance tax, petitioners attach great significance to the Secretary's approval of the leases. Curiously, they attach virtually no significance to the fact that the Secretary also approved the tax ordinance that they challenge here.

[19] The Tribe argues that the 1927 Act granting the States the power to tax mineral production on Indian land is inapplicable because the leases at issue here were signed pursuant to the 1938 Act. The 1938 Act, which makes uniform the laws applicable to leasing mineral rights on tribal lands, does not contain a grant of power to the States comparable to that found in the 1927 Act. As a result, the Tribe asserts that the State of New Mexico has no power to tax the production under petitioners' leases with the Tribe. Because the State of New Mexico is not a party to this suit, the Court of Appeals did not reach this issue. See 617 F. 2d, at 547-548, n. 5. For this reason, and because we conclude that the 1927 Act did not affect the Tribe's authority to tax, we likewise do not reach this issue.

[20]The statute provides that Indian severance taxes may be recovered through federal energy pricing. However, the legislative history indicates that Congress took no position on the source of the Indian tribes' power to impose the tax in the first place:

"While severance taxes which may be imposed by an Indian tribe are to be treated in the same manner as State imposed severance taxes, the conferees do not intend to prejudge the outcome of the cases on appeal before the Tenth Circuit Court of Appeals respecting the right of Indian tribes to impose taxes on persons or organizations other than Indians who are engaged in business activities on Indian reservations. The outcome of the cases on appeal will determine the legality of imposing such taxes." S. Conf. Rep. No. 95-1126, p. 91 (1978); H. R. Conf. Rep. No. 95-1752, p. 91 (1978).

[21] The Commerce Clause empowers Congress "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U. S. Const., Art. I, § 8, cl. 3 (emphasis added).

[22] In Prudential Insurance Co. v. Benjamin, this Court refused to invalidate a South Carolina tax on out-of-state insurance companies despite appellant's contention that the tax impermissibly burdened interstate commerce. The Court refused to entertain appellant's argument because Congress, in passing the McCarran-Ferguson Act, had provided that "silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of [the business of insurance] by the several States." 59 Stat. 33, 15 U. S. C. § 1011.

[23] Although Congress has not expressly announced that Indian taxes do not threaten its latent power to regulate interstate commerce, it is unclear how Congress could articulate that intention any more convincingly than it has done here. In contrast to when Congress acts with respect to the States, when Congress acts with respect to the Indian tribes, it generally does so pursuant to its authority under the Indian Commerce Clause, or by virtue of its superior position over the tribes, not pursuant to its authority under the Interstate Commerce Clause. This is but one of the difficulties inherent in reviewing under the Interstate Commerce Clause both tribal action and congressional action regulating the tribes. Therefore, in determining whether Congress has "acted" to preclude judicial review, we do not find it significant that the congressional action here was not taken pursuant to the Interstate Commerce Clause.

[24] Petitioners initially contend that the ordinance taxes the transportation of the minerals from the reservation, not their severance from the mines. As a result, they argue that the ordinance impermissibly burdens interstate commerce by taxing the movement in commerce itself, which is not a local event. The tax, by its terms, applies to resources that are "produced on the Jicarilla Apache Tribe Reservation and sold or transported off the Reservation." App. 39. The Tribe explains that this language was used because no sale occurs prior to the transportation off the reservation. The Tribe's tax is due at the time of severance. Id., at 38. Therefore, we agree with the Court of Appeals that the taxable event defined by the ordinance is the removal of minerals from the soil, not their transportation from the reservation. See 617 F. 2d, at 546.

[25] The Court of Appeals noted that, because the lessees chose not to build a factual foundation to challenge the tax on this ground, there was no basis on which to find that the tax was not fairly related to the services provided by the Tribe. See id., at 545, n. 4. Indeed, when the Tribe attempted to introduce at trial evidence of the services it had provided to establish this relationship, the District Court rejected this evidence upon petitioners' objection that such evidence was irrelevant to their challenge. Brief for Respondent Jicarilla Apache Tribe 7-8; 6 Record 278-290, 294, 300-308.

[26] The ordinance does not distinguish between minerals remaining within New Mexico and those transported beyond the state boundary. As a result, petitioners' argument that the tax discriminates against interstate commerce by favoring local sales focuses on the boundary between the reservation and the State of New Mexico and not on any interstate boundaries. We will assume for purposes of this argument only that this alleged reservation-state discrimination could give rise to a Commerce Clause violation.

[27] Paragraph 4 of the ordinance specifies that "[r]oyalty gas, oil or condensate taken by the Tribe in kind, and used by the Tribe shall be exempt from taxation." App. 39.

[28] Petitioners contend that because New Mexico may tax the same mining activity at full value, the Indian tax imposes a multiple tax burden on interstate commerce in violation of the Commerce Clause. The multiple taxation issue arises where two or more taxing jurisdictions point to some contact with an enterprise to support a tax on the entire value of its multistate activities, which is more than the contact would justify. E. g., Standard Oil Co. v. Peck, 342 U. S. 382, 384-385 (1952). This Court has required an apportionment of the tax based on the portion of the activity properly viewed as occurring within each relevant State. See, e. g., Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U. S. 207, 219 (1980); Washington Revenue Dept. v. Association of Washington Stevedoring Cos.,435 U. S. 734, 746, and n. 16 (1978).

This rule has no bearing here, however, for there can be no claim that the Tribe seeks to tax any more of petitioners' mining activity than the portion occurring within tribal jurisdiction. Indeed, petitioners do not even argue that the Tribe is seeking to seize more tax revenues than would be fairly related to the services provided by the Tribe. See supra, at 157, and n. 23. In the absence of such an assertion, and when the activity taxed by the Tribe occurs entirely on tribal lands, the multiple taxation issue would arise only if a State attempted to levy a tax on the same activity, which is more than the State's contact with the activity would justify. In such a circumstance, any challenge asserting that tribal and state taxes create a multiple burden on interstate commerce should be directed at the state tax, which, in the absence of congressional ratification, might be invalidated under the Commerce Clause. These cases, of course, do not involve a challenge to state taxation, and we intimate no opinion on the possibility of such a challenge.

[29] See Plaintiff's Exhibit E. p. 4.

[30] "[H]ereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: Provided, further, That nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe." 16 Stat. 566, current version at 25 U. S. C. § 71.

[31]The entire Executive Order reads as follows:

"EXECUTIVE MANSION, FEBRUARY 11, 1887.

"It is hereby ordered that all that portion of the public domain in the Territory of New Mexico which, when surveyed, will be embraced in the following townships, viz:

"27, 28, 29, and 30 north, ranges 1 east, and 1, 2, and 3 west; 31 and 32 north, ranges 2 west and 3 west, and the south half of township 31 north, range 1 west, be, and the same is hereby, set apart as a reservation for the use and occupation of the Jicarilla Apache Indians: Provided, That this order shall not be so construed as to deprive any bona fide settler of any valid rights he may have acquired under the law of the United States providing for the disposition of the public domain.

"Grover Cleveland."

1 C. Kappler, Indian Affairs, Laws and Treaties 875 (1904).

[32] The Secretary contended that the land on Executive Order reservations was subject to leasing, as "lands of the United States," under the Mineral Lands Leasing Act of February 25, 1920, 41 Stat. 437, 30 U. S. C. § 181 et seq. In 1924, Attorney General Stone rendered an opinion stating that the Mineral Lands Leasing Act did not apply to Executive Order reservations. 34 Op. Atty. Gen. 181. In 1925, Stone instituted litigation in the District Court of Utah to cancel certain leases that had been authorized by the Secretary of the Interior pursuant to the Mineral Lands Leasing Act. See H. R. Rep. No. 1791, 69th Cong., 2d Sess., 5 (1927). The case was dismissed by stipulation after the enactment of the 1927 Act noted in the text. See United States v. McMahon,273 U. S. 782.

A later decision by this Court suggests that the Secretary's position was correct. In Sioux Tribe of Indians v. United States, 316 U. S. 317, the Court held that an Indian tribe was not entitled to compensation from the United States when an Executive Order reservation was abolished. The Court said:

"Perhaps the most striking proof of the belief shared by Congress and the Executive that the Indians were not entitled to compensation upon the abolition of an executive order reservation is the very absence of compensatory payments in such situations. It was a common practice, during the period in which reservations were created by executive order, for the President simply to terminate the existence of a reservation by cancelling or revoking the order establishing it. That is to say, the procedure followed in the case before us was typical. No compensation was made, and neither the Government nor the Indians suggested that it was due.

.....

"We conclude therefore that there was no express constitutional or statutory authorization for the conveyance of a compensable interest to petitioner by the four executive orders of 1875 and 1876, and that no implied Congressional delegation of the power to do so can be spelled out from the evidence of Congressional and executive understanding. The orders were effective to withdraw from sale the lands affected and to grant the use of the lands to the petitioner. But the interest which the Indians received was subject to termination at the will of either the executive or Congress and without obligation to the United States. The executive orders of 1879 and 1884 were simply an exercise of this power of termination, and the payment of compensation was not required." Id., at 330-331.

See also Tee-Hit-Ton Indians v. United States, 348 U. S. 272, 279-282.

[33]Act of Mar. 3, 1927, 44 Stat. (part 2) 1347, current version at 25 U. S. C. § 398a. Section 1 of the Act provided:

"[U]nallotted lands within the limits of any reservation or withdrawal created by Executive order for Indian purposes or for the use or occupancy of any Indians or tribe may be leased for oil and gas mining purposes in accordance with the provisions contained in the Act of May 29, 1924 [25 U. S. C. § 398]."

See also 25 U. S. C. § 398. Unallotted land is land that had not been allotted in severalty to individual Indians pursuant to the General Allotment Act of 1887, 24 Stat. 388.

[34]Section 2 of the Act provided:

"[T]he proceeds from rentals, royalties, or bonuses of oil and gas leases upon lands within Executive order Indian reservations or withdrawals shall be deposited in the Treasury of the United States to the credit of the tribe of Indians for whose benefit the reservation or withdrawal was created or who are using and occupying the land, and shall draw interest at the rate of 4 per centum per annum and be available for appropriation by Congress for expenses in connection with the supervision of the development and operation of the oil and gas industry and for the use and benefit of such Indians: Provided, That said Indians, or their tribal council, shall be consulted in regard to the expenditure of such money, but no per capita payment shall be made except by Act of Congress." 44 Stat. (part 2) 1347, current version at 25 U. S. C. § 398b.

[35]Section 3 of the Act provided:

"[T]axes may be levied and collected by the State or local authority upon improvements, output of mines or oil and gas wells or other rights, property, or assets of any lessee upon lands within Executive order Indian reservations in the same manner as such taxes are otherwise levied and collected, and such taxes may be levied against the share obtained for the Indians as bonuses, rentals, and royalties, and the Secretary of the Interior is authorized and directed to cause such taxes to be paid out of the tribal funds in the Treasury: Provided, That such taxes shall not become a lien or charge of any kind against the land or other property of such Indians." 44 Stat. (part 2) 1347, current version at 25 U. S. C. § 398c.

[36] In 1938, Congress passed the Act of May 11, 1938, 52 Stat. 347, 25 U. S. C. §§ 396a-396g, which was designed in part to achieve uniformity for all mineral leases of Indian lands. Like the 1927 Act, the statute provided that the tribes were entitled to the royalties from such leases. The statute made no mention of taxes. See n. 45, infra.

[37]The statute provided, in part:

"Any Indian tribe, or tribes, residing on the same reservation, shall have the right to organize for its common welfare, and may adopt an appropriate constitution and bylaws, which shall become effective when ratified by a majority vote of the adult members of the tribe, or of the adult Indians residing on such reservation, as the case may be, at a special election authorized and called by the Secretary of the Interior under such rules and regulations as he may prescribe. . . .

"In addition to all powers vested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest in such tribe or its tribal council the following rights and powers: To employ legal counsel, the choice of counsel and fixing of fees to be subject to the approval of the Secretary of the Interior; to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; and to negotiate with the Federal, State, and local Governments." 25 U. S. C. § 476.

[38]The statute provided:

"The Secretary of the Interior may, upon petition by at least one-third of the adult Indians, issue a charter of incorporation to such tribe: Provided, That such charter shall not become operative until ratified at a special election by a majority vote of the adult Indians living on the reservation. Such charter may convey to the incorporated tribe the power to purchase, take by gift, or bequest, or otherwise, own, hold, manage, operate, and dispose of property of every description, real and personal, including the power to purchase restricted Indian lands and to issue in exchange therefor interests in corporate property, and such further powers as may be incidental to the conduct of corporate business, not inconsistent with law; but no authority shall be granted to sell, mortgage, or lease for a period exceeding ten years any of the land included in the limits of the reservation. Any charter so issued shall not be revoked or surrendered except by Act of Congress." 25 U. S. C. § 477.

[39] See F. Cohen, Handbook of Federal Indian Law 267 (1942) (hereinafter Cohen).

[40] The 1937 Constitution made no reference to any power to assess taxes against nonmembers. See 1937 Constitution and By-Laws of the Jicarilla Apache Tribe, Defendants' Exhibit G.

[41] This lease is attached to petitioners' complaint in No. 80-11. The lease attached to the complaint in No. 80-15 was also executed in 1953. See App. 62. The record does not disclose the date on which most of the leases with petitioners were executed, but the record does indicate that leases were executed as late as 1967. See Plaintiffs' Exhibit 1. Leases of Jicarilla tribal property cover in the aggregate over 500,000 acres of land, comprising almost 69% of the acreage within the Jicarilla Reservation. Brief for Respondent Jicarilla Apache Tribe 2.

[42] App. to Brief for Petitioners in No. 80-15, pp. 12a-13a. An earlier Constitution adopted in 1960 contained a similar provision permitting "taxes and fees on persons doing business on the reservation." See 1960 Constitution of the Jicarilla Apache Tribe, Art. VI, § 5, Defendant's Exhibit A.

[43] See District Court's Findings of Fact and Conclusions of Law, Finding No. 32, App. 130. The Tribe's answers to interrogatories indicate that in 1976 the royalties on the leases received by the Tribe amounted to $3,995,469.69. See Plaintiff's Exhibit E, p. 7; Tr. 269.

[44] Congress may delegate "sovereign" powers to the tribes. See United States v. Mazurie, 419 U. S. 544. As indicated, however, neither the 1927 statute permitting Indians to receive royalties from the lease of tribal lands nor the Indian Reorganization Act of 1934 conveys authority to the Indian tribes to tax. See supra, at 163-165.

[45]The only reference to Indian tribes in the Constitution is in Art. I, § 8, cl. 3, which provides that "[t]he Congress shall have Power . . . [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." More significant than this reference to Indian tribes is the absence of any mention of the tribes in the Tenth Amendment, which provides:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

[46] The Indian tribes often have been described as "domestic dependent nations." The term was first used in Cherokee Nation v. Georgia,5 Pet. 1, where Chief Justice Marshall, writing for the Court, explained:

"Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet, it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian." Id., at 17.

The United States retains plenary authority to divest the tribes of any attributes of sovereignty. See United States v. Wheeler, 435 U. S. 313, 319; Winton v. Amos, 255 U. S. 373, 391-392; Lone Wolf v. Hitchcock, 187 U. S. 553, 565; 1 American Indian Policy Review Commission, Final Report 106-107 (1977) (hereinafter AIPRC Final Report). Thus, for example, Congress can waive the tribes' sovereign immunity. See United States v. United States Fidelity & Guaranty Co., 309 U. S. 506, 512.

[47] The Indian Civil Rights Act of 1968, 82 Stat. 77, 25 U. S. C. §§ 1301-1303, prohibits Indian tribes from denying "to any person within its jurisdiction the equal protection of its laws." § 1302(8). In Santa Clara Pueblo, however, the Court held that sovereign immunity protected a tribe from suit under the Act, that the Act did not create a private cause of action cognizable in federal court, and that a tribal court was the appropriate forum for vindication of rights created by the Act.

[48] In Talton v. Mayes, 163 U. S. 376, the Court held that the Fifth Amendment right to indictment by grand jury does not apply to prosecutions in tribal courts. See also United States v. Wheeler, supra, at 328-329.

[49] Certain treaties that specifically granted the right of self-government to the tribes also specifically excluded jurisdiction over nonmembers. See, e. g., Treaty with the Cherokees, Art. 5, 7 Stat. 481 (1835); Treaty with the Choctaws and Chickasaws, Art. 7, 11 Stat. 612 (1855); Treaty with the Creeks and Seminoles, Art. 15, 11 Stat. 703 (1856).

[50]In support of that holding, the Court stated:

"Upon incorportion into the territory of the United States, the Indian tribes thereby come under the territorial sovereignty of the United States and their exercise of separate power is constrained so as not to conflict with the interests of this overriding sovereignty. `[T]heir rights to complete sovereignty, as independent nations, [are] necessarily diminished.' Johnson v. M'Intosh, 8 Wheat. 543, 574 (1823)." 435 U. S., at 209.

See also New York ex rel. Ray v. Martin, 326 U. S. 496, 499 (state court has jurisdiction to try a non-Indian for a crime committed against a non-Indian on a reservation).

[51] Preceding this statement the Court noted that "the Court [in Oliphant] quoted Justice Johnson's words in his concurrence in Fletcher v. Peck, 6 Cranch 87, 147 — the first Indian case to reach this Court — that the Indian tribes have lost any `right of governing every person within their limits except themselves.' 435 U. S., at 209." Montana v. United States, 450 U. S., at 565. See also Oneida Indian Nation v. County of Oneida, 414 U. S. 661 (tribes cannot freely alienate to non-Indians the land they occupy); Cherokee Nation v. Georgia,5 Pet. 1, 17-18 (tribes cannot enter into direct commercial or foreign relations with other nations).

In United States v. Wheeler, supra, the Court held that the tribes' power to prosecute its members for tribal offenses was not "implicitly lost by virtue of their dependent status," but stated:

"The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe. . . .

"These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by virtue of a tribe's dependent status. `[T]he settled doctrine of the law of nations is, that a weaker power does not surrender its independence — its right to self government, by associating with a stronger, and taking its protection.' Worcester v. Georgia [6 Pet.], at 560-561." 435 U. S., at 326.

[52]The Indian Reorganization Act of 1934 confirmed but did not enlarge the inherent sovereign powers of the Indian tribes. Congress intended the Act to "stabilize the tribal organization of Indian tribes by vesting such tribal organizations with real, though limited, authority. . . ." S. Rep. No. 1080, 73d Cong., 2d Sess., 1 (1934). As one commentator interpreted § 16 of the Act:

"[I]t would appear that powers originally held by tribes that were recognized and allowed to be retained by treaties or prior statutes, as well as any additional powers conferred in the same manner, would be retained by tribes that accepted the terms of the 1934 Act. . . . The provision is consistent with the act's purpose of enhancing tribal government in that it recognized and reconfirmed those powers a tribe may already have had as a government." Mettler, A Unified Theory of Indian Tribal Sovereignty, 30 Hastings L. Rev. 89, 97 (1978).

Moreover, although the power given by the Reorganization Act to the Secretary of the Interior to approve or disapprove of the exercise of tribal powers places a limit on tribal sovereignty, that power does not enable the Secretary to add to the inherent powers that a tribe possessed before the Act was passed.

On the other hand, the fact that an Indian tribe may never have had the occasion to exercise a particular power over nonmembers in its early history is not a sufficient reason to deny the existence of that power. Accordingly, the fact that there is no evidence that the Jicarilla Apache Tribe ever imposed a tax of any kind on a nonmember does not require the conclusion that it has no such taxing power. To the extent that the power to tax was an attribute of sovereignty possessed by Indian tribes when the Reorganization Act was passed, Congress intended the statute to preserve those powers for all Indian tribes that adopted a formal organization under the Act.

[53]55 I. D. 14 (1934). Solicitor Margold described the scope of this opinion as follows:

"My opinion has been requested on the question of what powers may be secured to an Indian tribe and incorporated in its constitution and by-laws by virtue of the following phrase, contained in section 16 of the Wheeler-Howard Act (48 Stat. 984, 987) [the Reorganization Act of 1934]:

`In addition to all powers vested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest . . . . [Italics added.]'

"The question of what powers are vested in an Indian tribe or tribal council by existing law cannot be answered in detail for each Indian tribe without reference to hundreds of special treaties and special acts of Congress. It is possible, however, on the basis of the reported cases, the written opinions of the various executive departments, and those statutes of Congress which are of general import, to define the powers which have heretofore been recognized as lawfully within the jurisdiction of an Indian tribe. My answer to the propounded question, then, will be general, and subject to correction for particular tribes in the light of the treaties and statutes affecting such tribe wherever such treaties or statutes contain peculiar provisions restricting or enlarging the general authority of an Indian tribe." Id., at 17-18.

[54] Felix Cohen, in his Handbook on Federal Indian Law published in 1942, also relies on these cases in his discussion of tribal taxation of nonmembers. Cohen 266-267. The Court in Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134, cited both Buster v. Wright and Morris v. Hitchcock in upholding an exercise of the tribal power to tax. 447 U. S., at 153. See infra, at 185.

[55] "Attorneys practicing in the United States courts are not persons who come within the exceptions, for they are not `in the employment of the government of the United States,' or `persons peaceably traveling or temporarily sojourning in the country, or trading therein under license from the proper authority of the United States.' " 3 Ind. T., at 248-249, 54 S. W., at 809.

[56]In reaching this conclusion the court relied heavily on two opinions of the Attorney General of the United States. In the first opinion, issued in 1881, Attorney General MacVeagh supported the validity of Indian permit laws that determined which persons would be permitted to reside on the Choctaw and Chickasaw Reservations. 17 Op. Atty. Gen. 134. In his discussion of the right of non-Indians to enter and remain on tribal lands, MacVeagh stated:

"Replying to your fourth question: it seems from what has been already said that, besides those persons or classes mentioned by you, only those who have been permitted by the Choctaws or Chickasaws to reside within their limits, or to be employed by their citizens as teachers, mechanics, or skilled agriculturists, have a right to enter and remain on the lands of these tribes; and the right to remain is gone when the permit has expired." Id., at 136 (emphasis added).

In a second opinion on the same subject, Attorney General Phillips stated in 1884 that, in the absence of a treaty or statute, the power of an Indian tribe "to regulate its own rights of occupancy, and to say who shall participate therein and upon what conditions, can not be doubted." 18 Op. Atty. Gen. 34, 36. Although the treaties applicable to the Choctaw and Chickasaw Tribes specifically excepted from the grant of self-government the power over nonmembers, the Attorney General did not construe this provision to limit the Tribes' power to exclude:

"I submit that whatever this may mean it does not limit the right of these tribes to pass upon the question, who (of persons indifferent to the United States, i. e., neither employes, nor objectionable) shall share their occupancy and upon what terms. That is a question which all private persons are allowed to decide for themselves . . . ." Id., at 37.

[57]In other parts of its opinion, the court restated the propositions that the Tribe was "clothed with the power to admit white men, or not, at its option, which, as we hold, gave it the right to impose conditions," 3 Ind. T., at 253, 54 S. W., at 811, and that a lawyer who refused to pay for the privilege of remaining would become an "intruder":

"On the whole case we therefore hold that a lawyer who is a white man, and not a citizen of the Creek Nation, is, pursuant to their statute, required to pay for the privilege of remaining and practicing his profession in that nation the sum of $25; that, if he refuse the payment thereof, he becomes, by virtue of the treaty, an intruder, and that in such a case the government of the United States may remove him from the nation; and that this duty devolves upon the interior department. Whether the interior department or its Indian agents can be controlled by the courts by the writs of mandamus and injunction is not material in this case, because, as we hold, an attorney who refuses to pay the amount required by the statute by its very terms becomes an intruder, whom the United States promises by the terms of the treaty to remove, and therefore in such cases the officers and agents of the interior department would be acting clearly and properly within the scope of their powers." Id., at 256-257, 54 S. W., at 812.

[58]The Court stated:

"And it is not disputed that under the authority of these treaties, the Chickasaw Nation has exercised the power to attach conditions to the presence within its borders of persons who might otherwise not be entitled to remain within the tribal territory." 194 U. S., at 389.

[59] The 1876 legislation required licensed merchants and traders to obtain a permit and pay a fee of $25.

[60]The Court relied on 23 Op. Atty. Gen. 214 (1900) and 23 Op. Atty. Gen. 528 (1901). In the first opinion, Attorney General John W. Griggs stated:

"The treaties and laws of the United States make all persons, with a few specified exceptions, who are not citizens of an Indian nation or members of an Indian tribe, and are found within an Indian nation without permission, intruders there, and require their removal by the United States. This closes the whole matter, absolutely excludes all but the excepted classes, and fully authorizes these nations to absolutely exclude outsiders, or to permit their residence or business upon such terms as they may choose to impose, and it must be borne in mind that citizens of the United States, have, as such, no more right or business to be there than they have in any foreign nation, and can lawfully be there at all only by Indian permission; and that their right to be or remain or carry on business there depends solely upon whether they have such permission.

"As to the power or duty of your Department in the premises there can hardly be a doubt. Under the treaties of the United States with these Indian nations this Government is under the most solemn obligation, and for which it has received ample consideration, to remove and keep removed from the territory of these tribes, all this class of intruders who are there without Indian permission. The performance of this obligation, as in other matters concerning the Indians and their affairs, has long been devolved upon the Department of the Interior." 23 Op. Atty. Gen., at 218.

[61] After citing the opinion of Attorney General Griggs quoted at length in Morris v. Hitchcock,Judge Sanborn wrote:

"Pursuant to this decision the civilized tribes were charging, and the Indian agent was collecting, taxes from noncitizens engaged in business in these nations. It was under this state of facts that the United States and the Creek Nation made the agreement of 1901. Did they intend by that agreement that the Creek Nation should thereby renounce its conceded power to exact these permit taxes? Both parties knew that this power existed, and the United States, by the act of its President approving the law of the Creek national council, and the Secretary of the Interior by enforcing it, had approved its exercise. The subject of these taxes was presented to the minds of the contracting parties and was considered during the negotiation of the agreement, for that contract contains express stipulations that cattle grazed on rented allotments shall not be liable to any tribal tax (chapter 676, 31 Stat. 871, § 37), and that `no noncitizen renting lands from a citizen for agricultural purposes as provided by law, whether such lands have been selected as an allotment or not, shall be required to pay any permit tax' (chapter 676, 31 Stat. 871, § 39). But they made no provision that noncitizens who engaged in the mercantile business in the Creek Nation should be exempt from these taxes. As the law then in force required such noncitizens to pay such taxes, as both parties were then aware of that fact and considered the question, and as they made no stipulation to abolish these taxes, the conclusive presumption is that they intended to make no such contract, and that the power of the Creek Nation to exact these taxes, and the authority of the Secretary of the Interior and of his subordinates to collect them, were neither renounced, revoked, nor restricted, but that they remained in full force and effect after as before the agreement of 1901." 135 F., at 954.

[62] Ibid.The court stated:

"The legal effect . . . of the law prescribing the permit taxes is to prohibit noncitizens from conducting business within the Creek Nation without the payment of these taxes." Id., at 955.

[63] Two decades after the Reorganization Act was passed the problem was revisited by the Eighth Circuit. In Iron Crow v. Oglala Sioux Tribe of Pine Ridge Reservation, 231 F. 2d 89 (1956), the court held that the Tribe had the power to assess a tax on a nonmember lessee of land within the reservation for the privilege of grazing stock on reservation land. And in Barta v. Oglala Sioux Tribe of Pine Ridge Reservation, 259 F. 2d 553 (1958), the court held that the United States could bring an action on behalf of the Tribe to collect a license tax of 3 cents per acre per annum for grazing land and 15 cents per acre per annum for farm land levied on nonmember lessees. The court in Bartaheld that the tax did not violate the constitutional rights of the nonmember lessees, stating in part:

"The tribe by provisions of its treaty with the United States has power to provide for the admission of nonmembers of the tribe onto the reservation. Having such power, it has the authority to impose restrictions on the presence of nonmembers within the reservation." Id., at 556.

Language in both Iron Crow and Barta suggests that the Court of Appeals, unlike the earlier courts, may not have rested the taxing power solely on the power to exclude. The Court of Appeals of course did not have the benefit of our decisions in Oliphant v. Suquamish Indian Tribe, 435 U. S. 191, Wheeler, and Montana v. United States.

[64]In the chapter of his treatise entitled "Taxation," Felix Cohen states:

"Though the scope of the power [to tax] as applied to nonmembers is not clear, it extends at least to property of nonmembers used in connection with Indian property as well as to privileges enjoyed by nonmembers in trading with the Indians. The power to tax nonmembers is derived in the cases from the authority, founded on original sovereignty and guaranteed in some instances by treaties, to remove property of nonmembers from the territorial limits of the tribe. Since the tribal government has the power to exclude, it can extract a fee from nonmembers as a condition precedent to granting permission to remain or to operate within the tribal domain." Cohen 266-267 (footnotes omitted).

In another chapter, entitled "The Scope of Tribal Self-Government," cited by the Secretary of the Interior and the Tribe here, Cohen describes the power of taxation as "an inherent attribute of tribal sovereignty which continues unless withdrawn or limited by treaty or by act of Congress. . . ." Id., at 142. After discussing Buster v. Wright, Cohen cites that case for the proposition that "[t]he power to tax does not depend upon the power to remove and has been upheld where there was no power in the tribe to remove the taxpayer from the tribal jurisdiction." Cohen 143. As demonstrated above, however, the license tax in Buster was predicated on the tribe's right to attach conditions on the right of nonmembers to conduct business on the reservation; the tribe could prevent such nonmembers from doing business regardless of whether it could physically remove them from the reservation. Moreover, in that same chapter on tribal self-government, Cohen recognizes that tribal taxes have been upheld on the basis of the tribe's power to remove nonmembers from the reservation, and that "[i]t is therefore pertinent, in analyzing the scope of tribal taxing powers, to inquire how far an Indian tribe is empowered to remove nonmembers from its reservation." Cohen 143.

The American Indian Policy Review Commission recognized that the court decisions upholding the tribes' taxing powers "rely largely upon the power of tribes to remove persons from the reservation, and consequently, to prescribe the conditions upon which they shall enter," but argued for a broader source of the right to tax. AIPRC Final Report 178-179.

[65] In Buster v. Wright, the penalty for nonpayment of the tax was the closing of the nonmember's business, enforced by the Secretary of the Interior. 135 F., at 954. In Morris v. Hitchcock, the remedy was the removal of the nonmember's cattle from the reservation, again enforced by the United States. 194 U. S., at 392. In Maxey v. Wright, an attorney refusing to pay the license fee to the Interior Department was subject to removal from the reservation. 3 Ind. T., at 250, 54 S. W., at 810.

[66] "No noncitizen is required to exercise a privilege or to pay the tax. He may refrain from the one and he remains free from liability for the other." Buster v. Wright, 135 F., at 949.

[67] See supra, at 171-172. As I have indicated, see n. 21, supra, treaties recognizing the inherent power of tribal self-government have also deprived the tribes of jurisdiction over nonmembers. Nevertheless, those same treaties often specifically recognized the right of the tribe to exclude nonmembers from the reservation or to attach conditions on their entry. See e. g., Treaty with the Choctaw and Chickasaw, Art. 7, 11 Stat. 612 (1855); Treaty with the Creeks and Seminoles, Art. 15, 11 Stat. 699 (1856). See 2 C. Kappler, Indian Affairs, Laws and Treaties 7, 9, 12, 15, 17, 20, 21, 27, 30, 42, 75, 418, 682, 699, 703, 719, 761, 774, 779, 790, 794, 800, 866, 886, 888, 929, 985, 990, 998, 1008, 1016, 1021 (1904).

[68]The various tribes may have taken a similar view of their power to tax at the time of the Indian Reorganization Act. Cohen's treatise notes:

"The power of an Indian tribe to levy taxes upon its own members and upon nonmembers doing business within the reservations has been affirmed in many tribal constitutions approved under the Wheeler-Howard Act [Indian Reorganization Act], as has the power to remove nonmembers from land over which the tribe exercises jurisdiction." Cohen 143.

The following clause from the 1935 Constitution of the Rosebud Sioux Tribe, which Cohen cites as a "typical" statement of such "tribal powers," indicates that the Tribe perceived the scope of its taxation powers over nonmembers to be narrower than the scope of that power over members. The Constitution conveys tribal power —

"(h) To levy taxes upon members of the tribe and to require the performance of reservation labor in lieu thereof, and to levy taxes or license fees, subject to review by the Secretary of the Interior, upon nonmembers doing business within the reservation.

"(i) To exclude from the restricted lands on the reservation persons not legally entitled to reside therein, under ordinances which shall be subject to review by the Secretary of the Interior." Ibid.

[69]The Court stated:

"The power to tax transactions occurring on trust lands and significantly involving a tribe or its members is a fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication of their dependent status." 447 U. S., at 152.

[70] The Court also cited, without discussion, the Eighth Circuit's decision in Iron Crow v. Oglala Sioux Tribe, 231 F. 2d 89 (1956). See n. 35, supra.

[71] A nonmember can avoid the tax by declining to do business on the reservation; the "sanction" imposed for refusal to pay the tax is denial of permission to buy cigarettes.

[72] In some respects the tribal power to tax nonmembers may be greater than the taxing power of other sovereigns. States do not have any power to exclude nonresidents from their borders. Moreover, their taxing statutes, like their other laws, must comply with the Equal Protection Clause of the Fourteenth Amendment. They may not, therefore, impose discriminatory taxes as a condition attached to entry into the jurisdiction in order to engage in economic activity. But since an Indian tribe has exclusive control over the "use and occupancy" of land within its reservation, it arguably could attach special discriminatory conditions to any license to a nonmember to use or occupy a portion of that land. As stated earlier, at a minimum the equal protection components of the Fifth and Fourteenth Amendments, which limit the sovereign powers of the Federal and State Governments, do not similarly restrict the sovereign powers of an Indian tribe. See supra, at 170.

[73] "[A]s the payment of a tax or license fee may be made a condition of entry upon tribal land, it may also be made a condition to the grant of other privileges, such as the acquisition of a tribal lease." Cohen 143.

[74] Congress intended the Act of March 3, 1927, to make applicable to Executive Order reservations the leasing provisions already applicable to treaty reservations pursuant to the Act of May 29, 1924, ch. 210, 43 Stat. 244. S. Rep. No. 1240, 69th Cong., 2d Sess., 3 (1927). The 1927 Act thus permitted the leasing of unallotted Indian land for terms not to exceed 10 years and as much longer as oil and gas in paying quantities were found on the land. 44 Stat. (part 2) 1347. Among the purposes of the 1927 statute were to "[p]ermit the exploration for oil and gas on Executive-order Indian Reservations," to "[g]ive the Indian tribes all the oil and gas royalties," and to "[p]lace with Congress the future determination of any changes of boundaries of Executive-order reservations or withdrawals." S. Rep. No. 1240, supra,at 3. In light of these purposes, it is clear that Congress intended leases executed pursuant to the 1927 Act to be binding.

The Tribe contends that the leases in these cases were executed pursuant to the Act of May 11, 1938, 52 Stat. 347, and not the 1927 Act. The Tribe notes that the lease in No. 80-15 states that it was executed pursuant to the 1938 Act. See App. 64. In response, petitioners note that, although the Tribe argues that the 1938 Act — unlike the 1927 Act — does not require that royalties be paid to the Secretary of the Interior for the benefit of the Tribe, petitioners make their royalty payments to the United States Geological Survey for the benefit of the Jicarilla Apache. See Tr. 79-80. There is no need to resolve this question, because for our purposes the provisions of the 1938 Act do not vary significantly from the provisions of the 1927 Act. The 1938 Act, like the 1927 Act, permits the leasing of Indian lands for a period "not to exceed ten years and as long thereafter as minerals are produced in paying quantities." 25 U. S. C. § 396a. One of the purposes of the 1938 Act was to establish uniformity in the leasing of tribal lands by applying the law governing oil and gas leasing to all other mineral leasing as well. S. Rep. No. 985, 75th Cong., 1st Sess., 1-2 (1937). Other purposes were to "bring all mineral leasing matters in harmony with the Indian Reorganization Act," id., at 3, and to enact changes designed "to give the Indians the greatest return from their property." Id., at 2. There is no indication in the legislative history that the purposes of the 1938 Act are in any way inconsistent with the purposes of the 1927 Act and prior legislation. Presumably the purposes of the earlier legislation were incorporated into the uniform scheme intended by the 1938 Act.

[75] As Attorney General MacVeagh stated in 1881, only those permitted by the tribe to remain on the reservation may do so, "and the right to remain is gone when the permit has expired." 17 Op. Atty. Gen., at 136.

[76] In Colville,the nonmember desiring to purchase cigarettes on the reservation knew that his right to do so was conditioned on his consent to pay the tax. Attorney General Griggs, in his 1900 opinion on "Trespassers on Indian Lands," discussed in similar terms the effect on tribal laws of a federal statute providing for the sale of reservation lots to non-Indians:

"[T]he legal right to purchase land within an Indian nation gives to the purchaser no right of exemption from the laws of such nation, nor does it authorize him to do any act in violation of the treaties with such nation. These laws requiring a permit to reside or carry on business in the Indian country existed long before and at the time this act was passed. And if any outsider saw proper to purchase a town lot under this act of Congress, he did so with full knowledge that he could occupy it for residence or business only by permission from the Indians." 23 Op. Atty. Gen., at 217.

In 1977, the American Indian Policy Review Commission noted that Indian tribes "do not both tax and receive royalties. Usually, they just receive royalties." AIPRC Final Report 344.

[77] The statute did authorize the collection of severance taxes by the States. Petitioners have argued that this authorization pre-empted any tribal power to impose a comparable tax. As recognized by the Court of Appeals, however, the legislative history indicates that Congress simply did not consider the question of tribal taxes on mineral output from reservation lands. 617 F. 2d 537, 547 (CA10 1980).

[78] The Secretary of the Interior argues that a license or franchise issued by a governmental body does not prevent the later imposition of a tax unless the right to tax " `has been specifically surrendered in terms which admit of no other reasonable interpretation.' " Brief for Secretary of Interior 13, n. 7 (quoting St. Louis v. United R. Co., 210 U. S. 266, 280). See also New Orleans City & Lake R. Co. v. New Orleans, 143 U. S. 192, 195; New York Transit Corp. v. City of New York, 303 U. S. 573, 590-593. The principal issue in these cases cited by the Secretary was whether the retroactive imposition of a franchise tax violated the Contract Clause of the Constitution or was so fundamentally unfair as to constitute a denial of due process in violation of the Fourteenth Amendment. Although this argument was by no means frivolous, cf. Puerto Rico v. Russell & Co., 315 U. S. 610, no such issue is raised here. These cases are distinguishable from the instant cases because Indian tribes do not have the same attributes of sovereignty as do States and their subdivisions. See supra, at 168-173.

492 U.S. 408 (1989)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[413] Jeffrey C. Sullivan argued the cause for petitioners in all cases. With him on the briefs for petitioners in No. 87-1711 was Terry Austin. Charles C. Flower and Patrick Andreotti filed briefs for petitioner in No. 87-1622. Dale B. Ramerman, Ronald T. Schaps, and Michael Mirande filed briefs for petitioner in No. 87-1697.

Tim Weaver argued the cause for respondents in all cases. With him on the brief was R. Wayne Bjur.^[2]

[414] JUSTICE WHITE, joined by THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY, delivered an opinion announcing the judgment of the Court in Nos. 87-1697 and 87-1711 and dissenting in No. 87-1622.

The issue presented by these three consolidated cases is whether the Yakima Indian Nation or the County of Yakima, a governmental unit of the State of Washington, has the authority to zone fee lands owned by nonmembers of the Tribe located within the boundaries of the Yakima Reservation.

I

A

The Confederated Bands and Tribes of the Yakima Indian Nation are composed of 14 originally distinct Indian Tribes that banded together in the mid-1800's to negotiate with the United States. The result of those negotiations was a treaty signed in 1855 and ratified by the Senate in 1859. Treaty between the United States and the Yakima Nation of Indians (Treaty with the Yakimas), 12 Stat. 951. By the terms of the treaty, the Yakima Nation ceded vast areas of land to the [415] United States but retained an area, the Yakima Indian Reservation, for its "exclusive use and benefit." Id., at 952.^[3]

The reservation is located in the southeastern part of the State of Washington. Approximately 1.3 million acres of land are located within its boundaries. Of that land, roughly 80% is held in trust by the United States for the benefit of the Yakima Nation or individual members of the Tribe. The remaining 20% of the land is owned in fee by Indian or non-Indian owners. Most of the fee land is found in Toppenish, Wapato, and Harrah, the three incorporated towns located in the northeastern part of the reservation. The remaining fee land is scattered throughout the reservation in a "checker-board" pattern.

The parties to this litigation, as well as the District Court and the Court of Appeals, have treated the Yakima Reservation as divided into two parts: a "closed area" and an "open area." The closed area consists of the western two-thirds of the reservation and is predominantly forest land. Of the approximately 807,000 acres of land in the closed area, 740,000 acres are located in Yakima County. Twenty-five thousand acres of the seven hundred and forty thousand acres are fee land. The closed area is so named because it has been closed to the general public at least since 1972 when the Bureau of Indian Affairs restricted the use of federally maintained roads in the area to members of the Yakima Nation and to its permittees, who must be record landowners or associated with the Tribe.^[4] Access to the open area, as its name suggests, [416] is not likewise restricted to the general public. The open area is primarily rangeland, agricultural land, and land used for residential and commercial development. Almost half of the land in the open area is fee land.

B

The Yakima Nation adopted its first zoning ordinance in 1970. The ordinance was amended to its present form in 1972. By its terms, the Yakima Nation ordinance applies to all lands within the reservation boundaries, including fee lands owned by Indians or non-Indians. Yakima County adopted its present comprehensive zoning ordinance in 1972, although the county had regulated land use as early as 1946. The county ordinance applies to all real property within county boundaries, except for Indian trust lands. The ordinance establishes a number of use districts, which generally govern agricultural, residential, commercial, industrial, and forest watershed uses. The particular zoning designations at issue are "forest watershed" and "general rural."

The fee lands located in the closed area are zoned by the county ordinance as forest watershed. That designation permits development of single-family dwellings, commercial campgrounds, small overnight lodging facilities, restaurants, bars, general stores and souvenir shops, service stations, marinas, and sawmills. The minimum lot size is one-half acre. None of these uses would be permitted by the zoning designation [417] "reservation restricted area," which applies to the closed area under the Yakima Nation zoning ordinance.

The general rural zoning designation, applicable to land in the open area, is one of three use districts governing agricultural properties. The minimum lot size for land zoned general rural is smaller than that specified for agricultural land in the Yakima Nation ordinance, although the other county use districts for agricultural properties have larger minimum lot sizes than the Yakima Nation ordinance.

C

1

Petitioner Philip Brendale, who is part Indian but not a member of the Yakima Nation, owns a 160-acre tract of land near the center of the forested portion of the closed area. The parcel was originally allotted to Brendale's great aunt, a member of the Yakima Nation. The land passed by inheritance to Brendale's mother and grandfather, who were issued a fee patent in 1963, and then, on his mother's death in 1972, to Brendale. The land is zoned as reservation restricted area by the Yakima Nation. It is zoned forest watershed by Yakima County.

In January 1982, Brendale filed four contiguous "short plat" applications with the Yakima County Planning Department. After determining that the short platting did not require an Environmental Impact Statement (EIS), the department issued a Declaration of Non-Significance. The department requested comments from the Yakima Nation, and after the Tribe did not respond, the short plats were approved.

Brendale then submitted in April 1983 a "long plat" application to divide one of his platted 20-acre parcels into 10 2-acre lots to be sold as summer cabin sites. Each lot is to have an individual well and a septic tank. Electric generators would provide electricity. The proposed plat is bordered on the north and east by other lands owned by Brendale, on the [418] south by lands owned in fee by the St. Regis Paper Company, and on the west by lands held in trust by the United States. The proposed development would not have been permissible under the Yakima Nation ordinance.

The county planning department again issued a Declaration of Non-Significance. The Yakima Nation appealed the Declaration of Non-Significance to the Yakima County Board of Commissioners on the grounds that the county had no zoning authority over the land and that an EIS was necessary. The commissioners concluded that the appeal was properly before the Board but reversed the planning department and ordered that an EIS be prepared.^[5]

2

Petitioner Stanley Wilkinson, a non-Indian and a nonmember of the Yakima Nation, owns a 40-acre tract of land in the open area of the reservation. The tract is located less than a mile from the northern boundary of the reservation and is on a slope overlooking the Yakima Municipal Airport and the city of Yakima. The land is bordered on the north by trust land and on the other three sides by fee land, and is currently vacant sagebrush property. It is zoned agricultural by the Yakima Nation and general rural by Yakima County.

In September 1983, Wilkinson applied to the Yakima County Planning Department to subdivide 32 acres of his land into 20 lots. The lots range in size from 1.1 acres to 4.5 acres. Each is to be used for a single-family home and will be served by individual wells and septic systems. The proposed development would not have been permissible under the Yakima Nation ordinance.

The planning department initially indicated that an EIS needed to be prepared for the project, but later, after Wilkinson modified his proposal, the department issued a Declaration of Non-Significance. The Yakima Nation thereafter appealed [419] the Declaration of Non-Significance, again challenging the county's authority to zone the land and alleging that an EIS was necessary. The county board of commissioners concluded that the appeal was properly before it and affirmed the planning department's conclusion that an EIS was not necessary.

D

The Yakima Nation then filed separate actions in United States District Court challenging the proposed development of the Brendale and Wilkinson properties and the county's exercise of zoning authority over the land.^[6] The complaints sought a declaratory judgment that the Yakima Nation had exclusive authority to zone the properties at issue and an injunction barring any action or the approval of any action on the land inconsistent with the land-use regulations of the Yakima Nation.

The District Court held that the Yakima Nation had exclusive zoning authority over the Brendale property, Yakima Indian Nation v. Whiteside, 617 F. Supp. 735, 744, 747 (ED Wash. 1985) (Whiteside I), but concluded that the Tribe lacked authority over the Wilkinson property, Yakima Indian Nation v. Whiteside, 617 F. Supp. 750, 758 (ED Wash. 1985) (Whiteside II). The District Court looked to this Court's opinion in Montana v. United States, 450 U. S. 544 (1981), as controlling whether an Indian tribe has authority to regulate activities of nonmembers of the tribe on fee lands. The District Court determined that there was no evidence of any "consensual relationship" between the Yakima Nation [420] and Wilkinson and Brendale that would extend the authority of the Tribe to the fee lands. 617 F. Supp., at 743; 617 F. Supp., at 757. But after making detailed findings of fact,^[7] the court concluded that "Brendale's proposed development does indeed pose a threat to the political integrity, the economic security and the health and welfare of the Yakima Nation," and therefore the Tribe has authority to impose its zoning regulations on that property. 617 F. Supp., at 744. The District Court then proceeded to determine that Yakima County was pre-empted from exercising concurrent zoning authority over the land in the closed area because its interests in regulating the land were minimal while the Tribe's interests were substantial. Id., at 747. But because Wilkinson's proposed development did not impose a similar threat, the Tribe had no authority whatsoever over that property. 617 F. Supp., at 758.

On appeal, the Ninth Circuit consolidated the cases and affirmed as to the Brendale property but reversed as to the Wilkinson property. Confederated Tribes and Bands of the Yakima Indian Nation v. Whiteside, 828 F. 2d 529 (1987). In upholding the Yakima Nation's zoning authority, the Court of Appeals did not disturb or rely on the findings of the District Court. Instead, it concluded that zoning ordinances [421] by their very nature attempt "to protect against the damage caused by uncontrolled development, which can affect all of the residents and land of the reservation." Id., at 534. According to the Court of Appeals, zoning ordinances are within the police power of local governments precisely because they promote the health and welfare of the community. Moreover, a "major goal" of zoning is coordinated land-use planning. Because fee land is located throughout the reservation in a checkerboard pattern, denying the Yakima Nation the right to zone fee land "would destroy [its] capacity to engage in comprehensive planning, so fundamental to a zoning scheme." This the court was "unwilling" to do. Id., at 534-535.^[8]

Brendale, Wilkinson, and Yakima County each petitioned for writ of certiorari.^[9] We granted the petitions and consolidated the cases for argument. 487 U. S. 1204 (1988).

II

The present actions were brought by the Yakima Nation to require development occurring on property within the boundaries of its reservation to proceed in accordance with the Yakima Nation zoning ordinance. The Tribe is necessarily contending that it has the exclusive authority to zone all of the property within the reservation, including the projects at issue here. We therefore examine whether the Yakima Nation has the authority, derived either from its treaty with the [422] United States or from its status as an independent sovereign, to zone the fee lands owned by Brendale and Wilkinson.

A

The Yakima Nation argues first that its treaty with the United States establishes its authority to regulate fee land within the reservation but owned by nonmembers of the Tribe. By its terms, the Treaty with the Yakimas provides that the land retained by the Yakima Nation "shall be set apart . . . for the exclusive use and benefit" of the Tribe, and no "white man, excepting those in the employment of the Indian Department, [shall] be permitted to reside upon the said reservation without permission of the tribe." 12 Stat. 951, 952. The Yakima Nation contends that this power to exclude provides the source for its authority over the land at issue here.

We disagree. The Yakima Nation no longer retains the "exclusive use and benefit" of all the land within the reservation boundaries established by the Treaty with the Yakimas. Under the Indian General Allotment Act, 24 Stat. 388, significant portions of the Yakima Reservation, including the tracts of land at issue here, were allotted to individual members of the Tribe. The land was held in trust for a period of years, generally 25 although the period was subject to extension, after which fee patents were issued. Id., at 389, § 5. Over time, through sale and inheritance, nonmembers of the Tribe, such as petitioners Brendale and Wilkinson, have come to own a substantial portion of the allotted land.

We analyzed the effect of the Allotment Act on an Indian tribe's treaty rights to regulate activities of nonmembers on fee land in Montana v. United States. The treaty language there was virtually identical to the language in the Treaty with the Yakimas, 450 U. S., at 558, and we concluded that "treaty rights with respect to reservation lands must be read in light of the subsequent alienation of those lands." Id., at 561. See also Puyallup Tribe, Inc. v. Washington Game [423] Dept., 433 U. S. 165, 174 (1977). In Montana, as in the present cases, the lands at issue had been alienated under the Allotment Act, and the Court concluded that "[i]t defies common sense to suppose that Congress would intend that non-Indians purchasing allotted lands would become subject to tribal jurisdiction when an avowed purpose of the allotment policy was the ultimate destruction of tribal government." 450 U. S., at 560, n. 9.

The Yakima Nation argues that we should not consider the Allotment Act because it was repudiated in 1934 by the Indian Reorganization Act, 48 Stat. 984. But the Court in Montana was well aware of the change in Indian policy engendered by the Indian Reorganization Act and concluded that this fact was irrelevant. 450 U. S., at 560, n. 9. Although the Indian Reorganization Act may have ended the allotment of further lands, it did not restore to the Indians the exclusive use of those lands that had already passed to non-Indians or prevent already allotted lands for which fee patents were subsequently issued from thereafter passing to non-Indians.

JUSTICE STEVENS acknowledges that the Allotment Act eliminated tribal authority to exclude nonmembers from fee lands they owned. Post, at 436-437. Yet he concludes that Brendale and Wilkinson are somehow subject to a tribal power to "determine the character of the tribal community," post, at 437, unless the Tribe has voluntarily surrendered that power. This view of tribal zoning authority as a sort of equitable servitude, post, at 442, is wholly unsupported by precedent.

JUSTICE STEVENS begins with a tribe's power to exclude nonmembers from its land and from that power derives a tribal "power to define the character of" that land, post, at 434, which he asserts as the basis for the Yakima Nation's exercise of zoning authority over the closed area of its reservation. According to JUSTICE STEVENS, the power to exclude "necessarily must include the lesser power to regulate land [424] use in the interest of protecting the tribal community." Post, at 433. But the Yakima Nation no longer has the power to exclude fee owners from its land within the boundaries of the reservation, as JUSTICE STEVENS concedes. Post, at 437. Therefore, that power can no longer serve as the basis for tribal exercise of the lesser included power, a result which is surely not "inconceivable," post, at 437, but rather which is perfectly straightforward. It is irrelevant that the Tribe had declared the closed area off limits before Brendale obtained title to his property. Once Brendale obtained title to his land that land was no longer off limits to him; the tribal authority to exclude was necessarily overcome by, as JUSTICE STEVENS puts it, an "implici[t] grant" of access to the land. Ibid.

Aside from the alleged inconceivability of the result, JUSTICE STEVENS offers no support for his assertion that in enacting the Allotment Act Congress intended tribes to retain the "power to determine the character of the tribal community." Ibid. JUSTICE STEVENS cites only Seymour v. Superintendent of Washington State Penitentiary, 368 U. S. 351 (1962), and Mattz v. Arnett, 412 U. S. 481 (1973), in support of his position. Post, at 441-442. Those cases are irrelevant to the issue at hand, however, concluding merely that allotment is consistent with continued reservation status. Meanwhile, Montana is directly to the contrary: the Court there flatly rejected the existence of a power, derived from the power to exclude, to regulate activities on lands from which tribes can no longer exclude nonmembers. See 450 U. S., at 559. JUSTICE STEVENS' attempts to distinguish Montana are unavailing. The distinctions on which he relies, that the regulation there was discriminatory, posed no threat to the welfare of the Tribe, and infringed on state interests, post, at 443-444, are not even mentioned in the section of the Montana opinion considering the power to exclude, see 450 [425] U. S., at 557-563, and certainly were not considered by the Court in that case as having any relevance to this issue.^[10]

We would follow Montana and conclude that, for the reasons stated there, any regulatory power the Tribe might have under the treaty "cannot apply to lands held in fee by non-Indians." Id., at 559.

B

An Indian tribe's treaty power to exclude nonmembers of the tribe from its lands is not the only source of Indian regulatory authority. In Merrion v. Jicarilla Apache Tribe, 455 U. S. 130, 141 (1982), the Court held that tribes have inherent sovereignty independent of that authority arising from their power to exclude. Prior to the European settlement of the New World, Indian tribes were "self-governing sovereign political communities," United States v. Wheeler, 435 U. S. 313, 322-323 (1978), and they still retain some "elements of `quasi-sovereign' authority after ceding their lands to the United States and announcing their dependence on the Federal Government," Oliphant v. Suquamish Indian Tribe, 435 U. S. 191, 208 (1978). Thus, an Indian tribe generally retains sovereignty by way of tribal self-government and control over other aspects of its internal affairs. Montana, supra, at 564.

A tribe's inherent sovereignty, however, is divested to the extent it is inconsistent with the tribe's dependent status, [426] that is, to the extent it involves a tribe's "external relations." Wheeler, 435 U. S., at 326.^[11] Those cases in which the Court has found a tribe's sovereignty divested generally are those "involving the relations between an Indian tribe and nonmembers of the tribe." Ibid. For example, Indian tribes cannot freely alienate their lands to non-Indians, Oneida Indian Nation v. County of Oneida, 414 U. S. 661, 667-668 (1974), cannot enter directly into commercial or governmental relations with foreign nations, Worcester v. Georgia, 6 Pet. 515, 559 (1832), and cannot exercise criminal jurisdiction over non-Indians in tribal courts, Oliphant, supra, at 195.

This list is by no means exclusive, as Montana makes clear. In Montana, the Crow Tribe sought to prohibit hunting and fishing within its reservation by anyone not a member of the Tribe. The Court held that the Tribe's inherent sovereignty did not support extending the prohibition on hunting and fishing to fee lands owned by non-Indians. It recognized the general principle that the "exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation." 450 U. S., at 564. Because regulation of hunting and fishing on fee lands owned by nonmembers of the Tribe did not bear any "clear relationship to tribal self-government or internal relations," ibid., this general principle precluded extension of tribal jurisdiction to the fee lands at issue.

The Yakima Nation contends that the Court's insistence in Montana on an express congressional delegation of tribal power over nonmembers is inconsistent with language in Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 153 (1980), that tribal powers are [427] divested by implication only when "the exercise of tribal sovereignty would be inconsistent with the overriding interests of the National Government." We do not see this language as inconsistent with Montana. As the opinion in Colville made clear, that case involved "[t]he power to tax transactions occurring on trust lands and significantly involving a tribe or its members." 447 U. S., at 152. It did not involve the regulation of fee lands, as did Montana. Moreover, the Court in Montana itself reconciled the two cases, citing Colville as an example of the sort of "consensual relationship" that might even support tribal authority over non-members on fee lands. 450 U. S., at 565-566.^[12]

JUSTICE BLACKMUN takes a slightly different approach, relying particularly on Colville and Wheeler for the proposition that "tribal sovereignty is not implicitly divested except in those limited circumstances principally involving external powers of sovereignty where the exercise of tribal authority is necessarily inconsistent with their dependent status." Post, at 451-452. But JUSTICE BLACKMUN ignores what the Court made clear in Wheeler, in a passage immediately preceding the one he cites: that regulation of "the relations between an Indian tribe and nonmembers of the tribe" is necessarily inconsistent with a tribe's dependent status, and therefore tribal sovereignty over such matters of "external relations" is divested. 435 U. S., at 326. Indeed, it is precisely this discussion that the Court relied upon in Montana as "distinguish[ing] between those inherent powers retained by the tribes and those divested." 450 U. S., at 564.

[428] There is no contention here that Congress has expressly delegated to the Yakima Nation the power to zone fee lands of nonmembers of the Tribe. Cf. 18 U. S. C. §§ 1151, 1161 (1982 ed., and Supp. V); 33 U. S. C. §§ 1377(e) and (h)(1) (1982 ed., Supp. V). Therefore under the general principle enunciated in Montana, the Yakima Nation has no authority to impose its zoning ordinance on the fee lands owned by petitioners Brendale and Wilkinson.

C

Our inquiry does not end here because the opinion in Montana noted two "exceptions" to its general principle. First, "[a] tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements." 450 U. S., at 565. Second, "[a] tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Id., at 566.

The parties agree that the first Montana exception does not apply in these cases. Brendale and Wilkinson do not have a "consensual relationship" with the Yakima Nation simply by virtue of their status as landowners within reservation boundaries, as Montana itself necessarily decided. The Yakima Nation instead contends that the Tribe has authority to zone under the second Montana exception. We disagree.

Initially, we reject as overbroad the Ninth Circuit's categorical acceptance of tribal zoning authority over lands within reservation boundaries. We find it significant that the so-called second Montana exception is prefaced by the word "may" — "[a] tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands [429] within its reservation." Ibid. (emphasis added). This indicates to us that a tribe's authority need not extend to all conduct that "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe," but instead depends on the circumstances. The Ninth Circuit, however, transformed this indication that there may be other cases in which a tribe has an interest in activities of nonmembers on fee land into a rule describing every case in which a tribe has such an interest. Indeed, the Ninth Circuit equated an Indian tribe's retained sovereignty with a local government's police power, which is contrary to Montana itself. Montana rejected tribal sovereignty to regulate hunting and fishing on fee land owned by non-Indians, which clearly is a power within the police power of local governments.^[13]

It is also evident that a literal application of the second exception would make little sense in the circumstances of these cases. To hold that the Tribe has authority to zone fee land when the activity on that land has the specified effect on Indian properties would mean that the authority would last [430] only so long as the threatening use continued. If it ceased, zoning power would revert to the county. Under the District Court's interpretation of Montana, not only would regulatory authority depend in the first instance on a factual inquiry into how a tribe's interests are affected by a particular use of fee land, but as circumstances changed over time, so, too, would the authority to zone. Conceivably, in a case like this, zoning authority could vest variously in the county and the Tribe, switching back and forth between the two, depending on what uses the county permitted on the fee land at issue. Uncertainty of this kind would not further the interests of either the Tribe or the county government and would be chaotic for landowners.^[14]

Montana should therefore not be understood to vest zoning authority in the tribe when fee land is used in certain ways. The governing principle is that the tribe has no authority itself, by way of tribal ordinance or actions in the tribal courts, to regulate the use of fee land. The inquiry thus becomes whether, and to what extent, the tribe has a protectible interest in what activities are taking place on fee land within the reservation and, if it has such an interest, how it may be protected. Of course, under ordinary law, neighbors often have a protectible interest in what is occurring on adjoining property and may seek relief in an appropriate forum, judicial or otherwise. Montana suggests that in the special circumstances of checkerboard ownership of lands within a reservation, the tribe has an interest under federal law, defined [431] in terms of the impact of the challenged uses on the political integrity, economic security, or the health or welfare of the tribe. But, as we have indicated above, that interest does not entitle the tribe to complain or obtain relief against every use of fee land that has some adverse effect on the tribe. The impact must be demonstrably serious and must imperil the political integrity, the economic security, or the health and welfare of the tribe. This standard will sufficiently protect Indian tribes while at the same time avoiding undue interference with state sovereignty and providing the certainty needed by property owners.

Since the tribes' protectible interest is one arising under federal law, the Supremacy Clause requires state and local governments, including Yakima County zoning authorities, to recognize and respect that interest in the course of their activities. The Tribe in this case, as it should have, first appeared in the county zoning proceedings, but its submission should have been, not that the county was without zoning authority over fee land within the reservation, but that its tribal interests were imperiled. The federal courts had jurisdiction to entertain the Tribe's suit for declaratory and injunctive relief,^[15] but given that the county has jurisdiction to zone fee lands on the reservation and would be enjoinable only if it failed to respect the rights of the Tribe under federal law, the proper course for the District Court in the Brendale phase of this case would have been to stay its hand until the zoning proceedings had been completed. At that time, a judgment could be made as to whether the uses that were actually authorized on Brendale's property imperiled the political integrity, the economic security, or the health or welfare of the Tribe. If due regard is given to the Tribe's protectible interest at all stages of the proceedings, we have every confidence that the nightmarish consequences predicted by JUSTICE BLACKMUN, post, at 460-461, will be avoided. Of course [432] if practice proves otherwise, Congress can take appropriate action.

III

The District Court found that Yakima County's exercise of zoning power over the Wilkinson property would have no direct effect on the Tribe and would not threaten the Tribe's political integrity, economic security, or health and welfare. Whiteside II, 617 F. Supp., at 755. On the basis of these findings, it is clear that the Wilkinson development and the county's approval of that development do not imperil any interest of the Yakima Nation. Therefore, I would reverse the judgment of the Ninth Circuit as to the Wilkinson property.

The Brendale property presents a different situation. At the time the Tribe filed its suit, the county had agreed with the Tribe that an EIS was required before Brendale's development could go forward. The zoning proceedings had thus not been concluded, and the District Court's judgment was that the county had no power to go forward. That judgment was infirm under the approach outlined in this opinion. The zoning proceedings should have been allowed to conclude, and it may be that those proceedings would adequately recognize tribal interests and make unnecessary further action in the District Court. If it were otherwise, the District Court could then decide whether the uses the State permits on the Brendale property would do serious injury to, and clearly imperil, the protectible tribal interests identified in this opinion. This part of the case in my view should therefore be returned to District Court. A majority of this Court, however, disagrees with this conclusion.

Accordingly, since with respect to the Wilkinson property, JUSTICE STEVENS and JUSTICE O'CONNOR agree that the judgment of the Court of Appeals in Nos. 87-1697 and 87-1711 should be reversed, that is the judgment of the Court in those cases. With respect to the Brendale property, I would vacate the judgment of the Court of Appeals [433A] and remand the case to the Court of Appeals with instructions to vacate the judgment of the District Court and to remand the case to that Court for further proceedings. Because the Court instead affirms the judgment of the Court of Appeals in No. 87-1622, I dissent as to that case.

The judgment in Nos. 87-1697 and 87-1711 is Reversed.

[433B] JUSTICE STEVENS, joined by JUSTICE O'CONNOR, delivered an opinion announcing the judgment of the Court in No. 87-1622 and concurring in the judgment in Nos. 87-1697 and 87-1711.

The United States has granted to many Indian tribes, including the Yakima Nation — "a power unknown to any other sovereignty in this Nation: a power to exclude nonmembers entirely from territory reserved for the tribe." Merrion v. Jicarilla Apache Tribe, 455 U. S. 130, 160 (1982) (STEVENS, J., dissenting). That power necessarily must include the lesser power to regulate land use in the interest of protecting the tribal community. Thus, the proper resolution of these cases depends on the extent to which the Tribe's virtually absolute power to exclude has been either diminished by federal statute or voluntarily surrendered by the Tribe itself. The facts of record, which are summarized in JUSTICE WHITE'S opinion, ante, at, 414-421, dictate a different answer as to the two tracts of land at issue.

I

Zoning is the process whereby a community defines its essential character. Whether driven by a concern for health and safety, esthetics, or other public values, zoning provides the mechanism by which the polity ensures that neighboring uses of land are not mutually — or more often unilaterally — destructive. As Justice Sutherland observed for the Court in the landmark case of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926), the power to zone closely parallels the common law of nuisance and thus finds guidance in "the maxim [434] sic utere tuo ut alienum non laedas" — use your own property in such a manner as not to injure that of another. Id., at 387. Hence, a community reasonably might conclude that a factory has no place in an otherwise exclusively residential section or that an amusement park does not belong in an area devoted to quiet parks, libraries, and schools. As in nuisance law, the issue is ultimately one of whether the proposed land use is — "like a pig in the parlor instead of the barnyard" — "merely a right thing in the wrong place." Id., at 388.

An Indian tribe's power to exclude nonmembers from a defined geographical area obviously includes the lesser power to define the character of that area. In New Mexico v. Mescalero Apache Tribe, 462 U. S. 324 (1983), a unanimous Court recognized that "[a]tribe's power to exclude nonmembers entirely or to condition their presence on the reservation is . . . well established." Id., at 333. Likewise, in Merrion, the Court wrote:

"Nonmembers who lawfully enter tribal lands remain subject to the tribe's power to exclude them. This power necessarily includes the lesser power to place conditions on entry, on continued presence, or on reservation conduct . . . . When a tribe grants a non-Indian the right to be on Indian land, the tribe agrees not to exercise its ultimate power to oust the non-Indian as long as the non-Indian complies with the initial conditions of entry. However, it does not follow that the lawful property right to be on Indian land also immunizes the non-Indian from the tribe's exercise of its lesser-included power . . . to place . . . conditions on the non-Indian's conduct or continued presence on the reservation." 455 U. S., at 144-145 (footnote omitted) (emphasis in original).

It is difficult to imagine a power that follows more forcefully from the power to exclude than the power to require [435] that nonmembers, as a condition of entry, not disturb the traditional character of the reserved area.

At one time, the Yakima Nation's power to exclude nonmembers from its reservation was near absolute. This power derived from two sources: The Tribe's aboriginal sovereignty over vast reaches of land in the Pacific Northwest and the express provisions of its 1855 treaty with the United States. Even in the absence of a treaty provision expressly granting such authority, Indian tribes maintain the sovereign power of exclusion unless otherwise curtailed. See Worcester v. Georgia, 6 Pet. 515, 561 (1832); F. Cohen, Handbook of Federal Indian Law 252 (1982) (hereinafter Cohen); 1 Op. Atty. Gen. 465, 465-467 (1821). As is the case with many tribes, see, e. g., Montana v. United States, 450 U. S. 544, 548 (1981); Puyallup Tribe, Inc. v. Washington Game Dept., 433 U. S. 165, 174 (1977), the Yakima Nation's power to exclude was confirmed through an express treaty provision. Through the 1855 treaty, which was ratified by the Senate and proclaimed by President Buchanan in 1859, the Yakima Nation ceded to the United States millions of acres of land east of the main ridge of the Cascade Mountains in exchange for the guarantee that a defined area of approximately 1.3 million acres would be reserved from the ceded lands "for the use and occupation of the aforesaid confederated tribes and bands of Indians." Treaty between the United States and the Yakima Nation of Indians, 12 Stat. 951-952. The treaty provided that the entire "tract shall be set apart . . . for the exclusive use and benefit of said confederated tribes and bands of Indians, as an Indian reservation," and that no "white man, excepting those in the employment of the Indian Department, [shall] be permitted to reside upon said reservation without permission of the tribe and the superintendent and agent." Id., at 952. Thus, as of 1859, the Tribe's power to exclude was firmly established. The power to regulate land use ran parallel to the power to exclude. Just as the Tribe had authority to limit absolutely access to the reservation, [436] so it could also limit access to persons whose activities would conform to the Tribe's general plan for land use.

In 1887, however, the Indian General Allotment Act (Dawes Act), 24 Stat. 388, as amended, 25 U. S. C. § 331 et seq., to some extent reworked fundamental notions of Indian sovereignty. Under the Dawes Act, the President was authorized to allot reservation lands in severalty to resident Indians. Allotted lands were held in trust for members of the Tribe for a period of at least 25 years, after which the members received fee patents and could freely transfer the land to nonmembers. "When all the lands had been allotted and the trusts expired, the reservation could be abolished." Mattz v. Arnett, 412 U. S. 481, 496 (1973). See also Moe v. Confederated Salish and Kootenai Tribes, 425 U. S. 463, 478-479 (1976). In this manner, the Dawes Act was designed ultimately to abolish Indian reservations while attempting to bring "security and civilization to the Indian." D. Otis, The Dawes Act and the Allotment of Indian Lands 32 (1973). But, not long after the Act took effect it became apparent that its beneficent purpose had failed, and, in 1934, the Indian Reorganization Act, 48 Stat. 984, repudiated the allotment policy. See Cohen 614. In the interim, however, large portions of reservation lands were conveyed to non-members such as petitioners Wilkinson and Brendale.^[16]

The Dawes Act did not itself transfer any regulatory power from the Tribe to any state or local governmental authority. See Moe v. Confederated Salish and Kootenai Tribes, supra; Mattz v. Arnett, supra. Nonetheless, by providing for the allotment and ultimate alienation of reservation land, the Act in some respects diminished tribal authority. As we recognized in Montana v. United States, "treaty [437] rights with respect to reservation lands must be read in light of the subsequent alienation of those lands." 450 U. S., at 561. A statute that authorizes the sale of a parcel of land in a reservation must implicitly grant the purchaser access to that property. In addition, to the extent that large portions of reservation land were sold in fee, such that the Tribe could no longer determine the essential character of the region by setting conditions on entry to those parcels, the Tribe's legitimate interest in land-use regulation was also diminished. Although it is inconceivable that Congress would have intended that the sale of a few lots would divest the Tribe of the power to determine the character of the tribal community, it is equally improbable that Congress envisioned that the Tribe would retain its interest in regulating the use of vast ranges of land sold in fee to nonmembers who lack any voice in setting tribal policy.

Since the Dawes Act provided that individual allotments would be held in trust by the United States for members of the Tribe for a period of at least 25 years, it is evident that the tribal authority over land use within the reservation remained undiminished during that period and at least until actual transfers of land to nonmembers began to occur. The record does not contain a chronology of conveyances of trust lands to nonmembers of the Tribe, but it does disclose the extent of fee ownership of reservation lands at the time these lawsuits began. Most significantly, it establishes that as early as 1954 the Tribe had divided its reservation into two parts, which the parties and the District Court consistently described as the "closed area" and the "open area," and that it continues to maintain the closed area as a separate community. That division, which was made many years before either petitioner Brendale or petitioner Wilkinson acquired title to reservation land, is of critical importance and requires a different disposition of their respective cases.^[17]

[438] II

Resolutions adopted by the Tribal Council of the Yakima Nation have created what is known officially as the "reservation restricted area," and commonly referred to as the "closed area." Relying on language in the 1855 treaty assuring the Tribe "exclusive use and benefit" of reservation lands, the Council in a 1954 resolution declared "that the open range and forested area of the Yakima Indian Reservation is to remain closed to the general public" to protect the area's "grazing, forest, and wildlife resources." Resolution of Yakima Tribal Council (Aug. 4, 1954) (emphasis supplied). Under the 1954 resolution, entry into this area was "restricted to enrolled members of the Yakima Tribe, official agency employees, persons with bona fide property or business interests," close relatives of enrolled members, members of certain other Tribes, and certain permittees. Ibid. In addition, the resolution provided that "[e]ntry into closed areas is forbidden all persons while under the influence of liquor." Ibid.

Although the closed area occupies about 807,000 acres, consisting of almost two-thirds of the entire reservation, only 25,000 acres are owned in fee. Yakima Indian Nation v. Whiteside, 617 F. Supp. 735, 741 (ED Wash. 1985). For the most part this area consists of forests, which provide the major source of income to the Tribe. Virtually all of the fee land is owned by lumber companies whose operations are subject to regulation by the Bureau of Indian Affairs (BIA). Ibid. Cf. White Mountain Apache Tribe v. Bracker, 448 U. S. 136 (1980). Excluding the land owned by these lumber companies, the remaining fee land constitutes less than one percent of the closed area. 617 F. Supp., at 741. There are no permanent inhabitants of the Yakima County portion of the closed area. Id., at 742. One state-maintained highway [439] traverses a portion of the area, and several roads maintained by the BIA provide access to the closed area's interior. Id., at 737-738. Apparently, however, the county does not maintain any roads in this portion of the reservation. Cf. Yakima Indian Nation v. Whiteside, 617 F. Supp. 750, 755 (ED Wash. 1985).

The Tribe operates a "courtesy permit system" that allows selected groups of visitors access to the closed area. In order to protect the area's " `natural foods, medicines,' " and other natural resources, the activities of visitors "are limited to sightseeing, hiking, camping and tribal, BIA or family related business or activity." 617 F. Supp., at 738. Visitors are expressly "prohibited from hunting, fishing, boating, drinking, operating vehicles off established roads, camping at other than designated campsites and removing flora, fauna, petrified wood, other valuable rocks or minerals or artifacts." Ibid. Tribal police and game officers enforce the courtesy permit system by monitoring ingress and egress at four guard stations and by patrolling the interior of the closed area. Ibid.

Until recently the BIA supported the Tribe's policy of denying entry into the closed area by restricting use of BIA roads to members of the Tribe and a narrowly defined class of permittees. See ibid. In litigation with the Government, petitioner Brendale eventually succeeded in establishing a right of access to his own property over BIA roads. See Brendale v. Olney, No. C-78-145 (ED Wash., Mar. 3, 1981). Moreover, in 1988 the BIA ultimately decided to allow the public to use BIA roads because they had been constructed with public funds. See Letter from James S. Bergmann, Acting Assistant Secretary, Indian Affairs, of April 8, 1988, reprinted in App. to Brief for Petitioner in No. 87-1622, p. 1a. Contrary to the suggestion in JUSTICE WHITE'S opinion, see ante, at 415-416, n. 2, however, the fact that nonmembers may now drive on these roads does not change the basic character of the closed area or undermine the Tribe's [440] historic and consistent interest in preserving the pristine character of this vast, uninhabited portion of its reservation.

Petitioner Brendale's property is located in the heart of this closed portion of the reservation. He inherited the property in 1972 from his mother, who had been an enrolled member of the Yakima Nation. In 1982, Brendale filed a proposal with the Yakima County zoning authorities for the development of a 20-acre subdivision consisting of 10 2-acre lots. BIA roads provide the only access to the property, the nearest county road being more than 20 miles away. The proposal contemplates the construction of recreational summer cabins, on-site sewage disposal systems, and interior access roads that would be maintained by a homeowners' association. 617 F. Supp., at 741. The District Court found that the proposal would have a number of adverse environmental consequences and that the only interest that Yakima County possessed in overseeing the use of the Brendale property was that of "providing regulatory functions to its tax-paying citizens." Id., at 741-743. The county did not appeal from the District Court's decision holding that the Tribe has the exclusive authority to regulate land use in the closed area.^[18]

[441] Although the logging operations, the construction of BIA roads, and the transfer of ownership of a relatively insignificant amount of land in the closed area unquestionably has diminished the Tribe's power to exclude non-Indians from that portion of its reservation, this does not justify the conclusion that the Tribe has surrendered its historic right to regulate land use in the restricted portion of the reservation. By maintaining the power to exclude nonmembers from entering all but a small portion of the closed area, the Tribe has preserved the power to define the essential character of that area. In fact, the Tribe has exercised this power, taking care that the closed area remains an undeveloped refuge of cultural and religious significance, a place where tribal members "may camp, hunt, fish, and gather roots and berries in the tradition of their culture." Amended Zoning Regulations of the Yakima Indian Nation, Resolution No. 1-98-72, § 23 (1972), reprinted App. 64.

The question is then whether the Tribe has authority to prevent the few individuals who own portions of the closed area in fee from undermining its general plan to preserve the character of this unique resource by developing their isolated parcels without regard to an otherwise common scheme. More simply, the question is whether the owners of the small amount of fee land may bring a pig into the parlor. In my opinion, just as Congress could not possibly have intended in enacting the Dawes Act that tribes would maintain the power to exclude bona fide purchasers of reservation land from that property, it could not have intended that tribes would lose control over the character of their reservations upon the sale of a few, relatively small parcels of land. Neither proposition is explicit in the Dawes Act, yet both appear necessary to a reasonable operation of the allotment process. Cf. Seymour v. Superintendent of Washington State Penitentiary, 368 U. S. 351, 356 (1962) (allotment "did no more than open [442] the way for non-Indian settlers to own land on the reservation in a manner which the Federal Government, acting as guardian and trustee for the Indians, regarded as beneficial to the development of its wards"); Mattz v. Arnett, 412 U. S., at 497 (same). In this sense, the Tribe's power to zone is like an equitable servitude; the burden of complying with the Tribe's zoning rules runs with the land without regard to how a particular estate is transferred. Cf. R. Cunningham, W. Stoebuck, & D. Whitman, Law of Property §§ 8.22-8.32, pp. 485-506 (1984) (hereinafter Cunningham). Indeed, there is strong authority for the proposition that equitable servitudes fall within the same family of property law as easements. See C. Clark, Real Covenants and Other Interests Which "Run with Land" 174-175 (1947); Pound, The Progress of the Law, 1918-1919, Equity, 33 Harv. L. Rev. 813 (1920). There is no basis for concluding that the allotted property carried the benefit of one type of "servitude" and not the burden of the other.

In the Merrion case, a majority of this Court went a step beyond this narrow recognition of reserved power. There, the Court held that a tribe's power to impose an oil and gas severance tax on non-Indian lessees of reservation land can be derived from the power to exclude. 455 U. S., at 144-148. In reaching this conclusion, the Court rejected the lessee's contention that in leasing the land to the non-Indians the Tribe relinquished the power to exclude and thus the lesser included power to tax. Id., at 146-148. It is not necessary to go this far, however, to decide the present case. Rather, it is enough to recognize that notwithstanding the transfer of a small percentage of allotted land the Tribe retains its legitimate interest in the preservation of the character of the reservation. The Tribe's power to control the use of discrete, fee parcels of the land is simply incidental to its power to preserve the character of what remains almost entirely a region reserved for the exclusive benefit of the Tribe.

[443] Nor does the Court's decision in Montana v. United States, 450 U. S. 544 (1981), require a different result. First, the Montana case involved a discriminatory land-use regulation. Id., at 549. The Tribe's regulation prohibited non-Indians from hunting or fishing on their own property while members of the Tribe were free to engage in those activities. In contrast, petitioners do not suggest that a member of the Tribe would be allowed to undertake the development Brendale proposes. It is Brendale who seeks a special, privileged status. Second, in the Montana case we were careful to point out that the conduct of the non-Indians on their fee lands posed no threat to the welfare of the Tribe. Id., at 566. In sharp contrast, in this case the District Court expressly found that Brendale's

"planned development of recreational housing places critical assets of the Closed Area in jeopardy. . . . [O]f paramount concern to this court is the threat to the Closed Area's cultural and spiritual values. To allow development in this unique and undeveloped area would drastically diminish those intangible values. That in turn would undoubtedly negatively affect the general health and welfare of the Yakima Nation and its members. This court must conclude therefore that the Yakima Nation may regulate the use that Brendale makes of his fee land within the Reservation's Closed Area." 617 F. Supp., at 744.

Finally, in holding in the Montana case that the Tribe could not regulate non-Indian fishing and hunting on fee land within the reservation, we stressed that the State of Montana, and not the Tribe, stocked the river with fish and provided a portion of the game found on the reservation. 450 U. S., at 548. In addition, we held that the State owned the bed of the Big Horn River and thus rejected the Tribe's contention that it was entitled to regulate fishing and duck hunting in the river based on its purported ownership interest. [444] Id., at 550, n. 1, 556-557. No such state or county interest is asserted in this case.

In my view, the fact that a very small proportion of the closed area is owned in fee does not deprive the Tribe of the right to ensure that this area maintains its unadulterated character. This is particularly so in a case such as this in which the zoning rule at issue is neutrally applied, is necessary to protect the welfare of the Tribe, and does not interfere with any significant state or county interest. Although application of the pre-emption analysis advocated by JUSTICE WHITE provides some assurance that the reservation will not be overrun by various uses inconsistent with important tribal interests, it does not provide a means by which the Tribe can continue to define the character of the restricted area. The incremental shifts in the texture and quality of the surrounding environment occasioned by discrete land-use decisions within an expansive territory are not readily monitored or regulated by considering "whether the uses that were actually authorized on [the relevant] property imperiled the political integrity, the economic security, or the health or welfare of the Tribe." Ante, at 431.

I therefore agree with JUSTICE BLACKMUN that the Tribe may zone the Brendale property. The judgment of the Court of Appeals is accordingly affirmed in No. 87-1622.

III

The authority of the Tribe to enact and enforce zoning ordinances applicable in the open area — where petitioner Wilkinson's property is located — requires a different analysis. Although the Tribe originally had the power to exclude non-Indians from the entire reservation, the "subsequent alienation" of about half of the property in the open area has produced an integrated community that is not economically or culturally delimited by reservation boundaries. Because the Tribe no longer has the power to exclude nonmembers from a large portion of this area, it also lacks the power to [445] define the essential character of the territory. As a result, the Tribe's interest in preventing inconsistent uses is dramatically curtailed. For this reason, I agree with JUSTICE WHITE that the Tribe lacks authority to regulate the use of Wilkinson's property. So long as the land is not used in a manner that is pre-empted by federal law, the Tribe has no special claim to relief. It, of course, retains authority to regulate the use of trust land, and the county does not contend otherwise. See Brief for Petitioners in No. 87-1711, p. 12.

Unlike the closed area, the Tribe makes no attempt to control access to the open area. In this respect, the District Court found that "access to the area is not limited by the Yakima Nation and non-tribal members move freely throughout the area." 617 F. Supp., at 752. The county has constructed and maintained 487 miles of road, all of which are equally accessible to reservation residents and the general public. App. to Pet. for Cert. in No. 87-1697, p. 87a. Although the Tribe has asserted that it has the authority to regulate land use in the three incorporated towns, it has never attempted to do so. In "sharp contrast to the pristine, wilderness-like character of the `Closed Area,' " the open area is marked by "residential and commercial developmen[t]." 617 F. Supp., at 752.

Members of the Yakima Nation represent less than 20 percent of the open area's total population.^[19] Id., at 755. Indians and non-Indians alike are eligible to vote in county elections. Only enrolled members of the Tribe, however, are entitled to participate in tribal elections. 2 Tr. 167. Similarly, while the county provides police protection, public education, and other social services to both Indians and non-Indians, App. to Pet. for Cert. in No. 87-1697, p. 88a; 4 Tr. 546-547, government services provided by the Tribe — [446] although theoretically available to all residents — are in practice generally used only by members of the Tribe. 2 Tr. 143-144. Furthermore, the District Court found that the county has a substantial interest in regulating land use in the open area — and in particular in protecting "the county's valuable agricultural land" — and that the open area lacks "a unique religious or spiritual significance to the members of the Yakima Nation." 617 F. Supp., at 755.

In contrast to the closed area, almost half of the land in the open area is owned in fee. Id., at 752. The majority of the fee land is located in three incorporated towns in the open area, where approximately 10,000 of the open area's 25,000 residents live. Id., at 752, 755. The remaining portion of the open area, which includes approximately 143,000 acres of irrigated farm land, is largely devoted to agriculture. 3 Tr. 416. About 63,179 acres of this farm land are owned in fee by nonmembers. Id., at 422. Another 67,466 acres of this land are owned by the Yakima Nation or its members, but are leased to non-Indians. Ibid. Only 12,355 acres are farmed by tribal members. Petitioner "Wilkinson's property is bordered to the north by trust land and to the east, south and west by fee land." 617 F. Supp., at 754. The 40-acre lot overlooks the Yakima Municipal Airport and is composed of unfarmed, sagebrush land. Ibid.

Given that a large percentage of the land in the open area is owned in fee by nonmembers — and that an additional portion is leased to nonmembers — even if the Tribe had exercised its power to exclude nonmembers from trust land, it would have been unable thereby to establish the essential character of the region. In such circumstances, allowing a nonmember to use his or her land in a manner that might not be approved by the tribal council does not upset an otherwise coherent scheme of land use. The Tribe cannot complain that the nonmember seeks to bring a pig into the parlor, for, unlike the closed area, the Tribe no longer possesses the power to determine the basic character of the area. Moreover, [447] it is unlikely that Congress intended to give the Tribe the power to determine the character of an area that is predominantly owned and populated by nonmembers, who represent 80 percent of the population yet lack a voice in tribal governance. Finally, to the extent the open area has lost its character as an exclusive tribal resource, and has become, as a practical matter, an integrated portion of the county, the Tribe has also lost any claim to an interest analogous to an equitable servitude. Under the "change of neighborhood" doctrine, an equitable servitude lapses when the restriction, as applied to "the general vicinity and not merely a few parcels," has "become outmoded," has "lost its usefulness," or has become " `inequitable' to enforce." Cunningham § 8.20, pp. 482-483. See also Restatement of Property § 564 (1944). Because the open area no longer maintains the character of a unique tribal asset and because the Tribe accordingly lacks a substantial interest in governing land use, the power to zone has "become outmoded."

I therefore agree with JUSTICE WHITE'S conclusion that the Tribe lacks authority to zone the Wilkinson property.

IV

My conclusion that the dramatically different facts of these two cases should produce different results is subject to the obvious criticism that it does not identify a bright-line rule. The primary responsibility for line-drawing, however, is vested in the legislature. Moreover, line-drawing is inherent in the continuum that exists between those reservations that still maintain their status as distinct social structures and those that have become integrated in other local polities. Any difficulty courts may encounter in drawing the line between "closed" and "open" portions of reservations simply reflects that the factual predicate to these cases is itself complicated. Indeed, JUSTICE WHITE'S rule does little to avoid the difficulty of drawing lines and making subtle distinctions. Just as it is neither possible nor appropriate in these cases to set [448] a fixed percentage of fee ownership that will govern every case that may arise, so is it impossible to articulate precise rules that will govern whenever a tribe asserts that a land use approved by a county board is pre-empted by federal law. And although the rule that JUSTICE BLACKMUN proposes would provide an obvious answer in most cases, he recognizes that "[i]t may be that on some reservations, including the Yakima Reservation, there are essentially self-contained, definable, areas in which non-Indian fee lands so predominate that the tribe has no significant interest in controlling land use." Post, at 467, n. 9. Finally, it would be fundamentally unfair to deny appropriate relief to either party in these cases, which involves no difficulty in discerning the proper line, simply because a future case may be more difficult.

Accordingly, in No. 87-1622, the judgment of the Court of Appeals is affirmed. I concur in the judgment in Nos. 87-1697 and 87-1711 reversing the judgment of the Court of Appeals.

The judgment in No. 87-1622 is Affirmed.

JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, concurring in the judgment in No. 87-1622 and dissenting in Nos. 87-1697 and 87-1711.

The Court's combined judgment in these consolidated cases — splitting tribal zoning authority over non-Indian fee lands between the so-called "open" and "closed" areas of the Yakima Indian Reservation — is Solomonic in appearance only. This compromise result arises from two distinct approaches to tribal sovereignty, each of which is inconsistent with this Court's past decisions and undermines the Federal Government's longstanding commitment to the promotion of tribal autonomy. Because the Court's judgment that the Tribe does not have zoning authority over non-Indian fee lands in the "open" area of its reservation is wrong, in my view, as a matter of law and fashions a patently unworkable legal rule, I dissent in Nos. 87-1697 and 87-1711. Because [449] JUSTICE STEVENS' opinion reaches the right result for the wrong reason with respect to the Tribe's authority to zone non-Indian fee lands in the closed portion of the reservation, I concur in the judgment in No. 87-1662. I shall discuss JUSTICE WHITE'S and JUSTICE STEVENS' opinions seriatim.

I

Eight years ago, this Court decided Montana v. United States, 450 U. S. 544 (1981). In that case, it was ruled that an Indian Tribe did not have the inherent authority to prohibit non-Indian hunting and fishing on fee lands located on a reservation and owned by a non-Indian, where the Tribe did not assert that any right or interest was infringed or affected by the non-Indian conduct. Today, with what seems to me to be no more than a perfunctory discussion of this Court's decisions both before and after Montana, JUSTICE WHITE'S opinion reads that case as establishing a general rule, modified only by two narrow exceptions, that Indian tribes have no authority over the activities of non-Indians on their reservations absent express congressional delegation. Ante, at 425-426.

Applying this rule, JUSTICE WHITE further suggests that Montana's "second exception," which recognizes inherent tribal authority over non-Indian conduct that "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe," 450 U. S., at 566, does not extend to the right of an Indian tribe to make rational and comprehensive land-use decisions for its reservation. Such a holding would guarantee that adjoining reservation lands would be subject to inconsistent and potentially incompatible zoning policies, and for all practical purposes would strip tribes of the power to protect the integrity of trust lands over which they enjoy unquestioned and exclusive authority.

Montana need not, and should not, be read to require such an absurd result. When considered in the full context of the [450] Court's other relevant decisions, it is evident that Montana must be read to recognize the inherent authority of tribes to exercise civil jurisdiction over non-Indian activities on tribal reservations where those activities, as they do in the case of land use, implicate a significant tribal interest.

A

JUSTICE WHITE'S opinion reiterates a "general principle" it finds in Montana that Indian tribes have no authority over the activities of non-Indians absent express congressional delegation. Ante, at 426. Concededly, the Court in Montana suggested that the "exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation." 450 U. S., at 564. But Montana is simply one, and not even the most recent, of a long line of our decisions discussing the nature of inherent tribal sovereignty. These cases, landmarks in 150 years of Indian-law jurisprudence, establish a very different "general principle" governing inherent tribal sovereignty — a principle according to which tribes retain their sovereign powers over non-Indians on reservation lands unless the exercise of that sovereignty would be "inconsistent with the overriding interests of the National Government." See, e. g., Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 153 (1980). Montana, and specifically the two "exceptions" that Montana recognizes to its anomalous "general principle," must be read against the rich and extensive background of these cases. When so considered, it is clear to me that nothing in Montana precludes, and indeed Montana contemplates, the exercise of civil jurisdiction over non-Indian activities on a tribal reservation, including the power to zone fee lands, where those non-Indian reservation activities implicate a significant tribal interest.

[451] 1

The crucial step in the process of interpreting Montana, and the step that JUSTICE WHITE'S opinion neglects, is to place that case in the spectrum of what came before and after it. From a time long before the 13 Colonies declared their independence from England, European nations recognized the native tribes of this continent as self-governing, sovereign, political communities. From this Court's earliest jurisprudence immediately after the American Revolution, it followed the settled understanding of international law that the sovereignty of the individual tribes, "domestic dependent nations" that placed themselves under the protection of the United States, survived their incorporation within the United States, except as necessarily diminished.^[20] In the landmark Cherokee Cases, this Court, through Chief Justice Marshall, held that the dependent status of the tribes divested them only of those aspects of their sovereignty — in particular the authority to engage in governmental relations with foreign powers and the power to alienate land to non-Indians — that were inherently inconsistent with the paramount authority of the United States.^[21]

Our approach to inherent tribal sovereignty remained essentially constant in all critical respects in the century and a half between John Marshall's first illumination of the subject and this Court's Montana decision. Time and again we stated that, while Congress retains the authority to abrogate tribal sovereignty as it sees fit, tribal sovereignty is not implicitly divested except in those limited circumstances [452] principally involving external powers of sovereignty where the exercise of tribal authority is necessarily inconsistent with the tribes' dependent status. See, e. g., United States v. Wheeler, 435 U. S. 313, 326 (1978) (implicit divestiture only of powers "necessarily . . . lost by virtue of a tribe's dependent status"); Colville, 447 U. S., at 153-154 (implicit divestiture only "where the exercise of tribal sovereignty would be inconsistent with the overriding interests of the National Government, as when the tribes seek to engage in foreign relations, alienate their lands to non-Indians without federal consent, or prosecute non-Indians in tribal courts which do not accord the full protections of the Bill of Rights").^[22]

[453] Indeed, what is most remarkable about this Court's jurisprudence of inherent tribal sovereignty is that, except for those few aspects of sovereignty recognized in the Cherokee Cases as necessarily divested, the Court only once prior to Montana (and never thereafter) has found an additional sovereign power to have been relinquished upon incorporation. In Oliphant v. Suquamish Indian Tribe, 435 U. S. 191 (1978), we held that tribes have no inherent criminal jurisdiction over non-Indians in tribal court. In light of the nearly universal understanding dating from the origins of this country's dealings with the tribes that they do not possess criminal jurisdiction over non-Indians except as permitted by treaty, and in light of the Federal Constitution's extraordinary protections against intrusions on personal liberty, we concluded that inherent criminal jurisdiction over non-Indians is inconsistent with the dependent status of the tribes. Id., at 208-212. But our decision in Colville, which was subsequent to Oliphant, expressly establishes that nothing in Oliphant negates our historical understanding that the [454] tribes retain substantial civil jurisdiction over non-Indians.^[23] We there observed that the Federal Government explicitly had recognized for more than a century that "Indian tribes possess a broad measure of civil jurisdiction over the activities of non-Indians on Indian reservation lands in which the tribes have a significant interest," 447 U. S., at 152, and noted that the historical understandings regarding civil jurisdiction "differ sharply" from those underlying Oliphant. 447 U. S., at 153 (upholding inherent tribal authority to tax on-reservation cigarette sales to non-Indians).

Our civil jurisdiction cases subsequent to Montana have reaffirmed this view: we have held without equivocation that tribal civil jurisdiction over non-Indians on reservation lands is not an aspect of tribal sovereignty necessarily divested by reason of the tribes' incorporation within the dominant society. In Merrion v. Jicarilla Apache Tribe, 455 U. S. 130 (1982), we upheld a tribe's inherent authority to impose a severance tax on non-Indian mining on the reservation. This taxing authority, even over non-Indians, we wrote, is an "inherent power necessary to tribal self-government and territorial management." Id., at 141. And in Iowa Mutual Ins. Co. v. LaPlante, 480 U. S. 9 (1987), we noted: "Tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty. . . . Civil jurisdiction over such activities presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute." Id., at 18 (citations omitted).^[24] [455] These cases, like their predecessors, clearly recognize that tribal civil jurisdiction over non-Indians on reservation lands is consistent with the dependent status of the tribes.

2

Given this background, how should we read Montana, where the Court held that the Tribe had no inherent authority to prohibit non-Indians from hunting and fishing on fee lands within the reservation? With respect to Montana's "general principle" creating a presumption against tribal civil jurisdiction over non-Indians absent express congressional delegation, I find it evident that the Court simply missed its usual way. Although the Court's opinion reads as a restatement, not as a revision, of existing doctrine, it contains language flatly inconsistent with its prior decisions defining the scope of inherent tribal jurisdiction, e. g., Colville. Notably, in support of its anomalous "general principle," the Montana opinion relies mainly on a line of state-law pre-emption cases that address the issue — irrelevant to the issue of inherent tribal sovereignty — as to when States may exercise jurisdiction over non-Indian activities on a reservation. See Montana, 450 U. S., at 564-566, citing Fisher v. District Court of Sixteenth Judicial District of Montana, 424 U. S. 382, 386 (1976); Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148 (1973); McClanahan v. Arizona State Tax Comm'n, 411 U. S. 164, 171 (1973); and Williams v. Lee, 358 U. S. 217, [456] 219-220 (1959). Not surprisingly, and of critical importance for deciding the instant cases, the Montana presumption has found no place in our subsequent decisions discussing inherent sovereignty.^[25] See New Mexico v. Mescalero Apache Tribe, 462 U. S. 324 (1983); National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845 (1985); Iowa Mutual Ins. Co., supra.

But to recognize that Montana strangely reversed the otherwise consistent presumption in favor of inherent tribal sovereignty over reservation lands is not to excise the decision from our jurisprudence. Despite the reversed presumption, the plain language of Montana itself expressly preserves substantial tribal authority over non-Indian activity on reservations, including fee lands, and, more particularly, may sensibly be read as recognizing inherent tribal authority to zone fee lands.

Montana explicitly recognizes that tribes "retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands." 450 U. S., at 565. Specifically, Montana holds that tribes have civil jurisdiction over non-Indians who enter "contracts, leases or other arrangements" with the tribe, ibid., and over non-Indian conduct which "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe," even if that conduct occurs on fee lands. Id., at 566. Thus, despite Montana's reversal of the usual presumption in favor of inherent sovereignty over reservation activity, the decision reasonably may be read, and, in my view, should be read, to recognize [457] that tribes may regulate the on-reservation conduct of non-Indians whenever a significant tribal interest is threatened or directly affected. So construed, Montana fits with relative ease into the constellation of this Court's sovereignty jurisprudence.

Under this approach, once the tribe's valid regulatory interest is established, the nature of land ownership does not diminish the tribe's inherent power to regulate in the area. This, too, is consistent with our cases. The Court has affirmed and reaffirmed that tribal sovereignty is in large part geographically determined. "Indian tribes," we have written, "are unique aggregations possessing attributes of sovereignty over both their members and their territory." United States v. Mazurie, 419 U. S. 544, 557 (1975) (emphasis added); see also White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 151 (1980) ("The Court has repeatedly emphasized that there is a significant geographical component to tribal sovereignty"). We have held that lands obtained under the allotment policy, which permitted non-Indians to purchase lands located within reservations, remain part of those reservations unless Congress explicitly provides to the contrary, e. g., Mattz v. Arnett, 412 U. S. 481, 498-499 (1973), and that tribal jurisdiction cannot be considered to vary between fee lands and trust lands; the resulting "impractical pattern of checkerboard jurisdiction' " would be contrary to federal statute and policy. Moe v. Confederated Salish and Kootenai Tribes, 425 U. S. 463, 478 (1976), quoting Seymour v. Superintendent of Washington State Penitentiary, 368 U. S. 351, 358 (1962). Thus, in Merrion, a post-Montana case, we cited with approval the Court of Appeals decision in Buster v. Wright, 135 F. 947 (CA8 1905), appeal dism'd, 203 U. S. 599 (1906), affirming the right of the Tribe to tax non-Indians on non-Indian-owned fee lands: " `[n]either the United States, nor a state, nor any other sovereignty loses the power to govern the people within its borders by the existence of towns and cities therein endowed [458] with the usual powers of municipalities, nor by the ownership nor occupancy of the land within its territorial jurisdiction by citizens or foreigners.' " Merrion, 455 U. S., at 143, quoting Buster v. Wright, 135 F., at 952 (emphasis added in Merrion).

It would be difficult to conceive of a power more central to "the economic security, or the health or welfare of the tribe," Montana, 450 U. S., at 566, than the power to zone. "I am in full agreement with the majority that zoning . . . may indeed be the most essential function performed by local government." Village of Belle Terre v. Boraas, 416 U. S. 1, 13 (1974) (MARSHALL, J., dissenting), quoted in part and with approval in Young v. American Mini Theatres, Inc., 427 U. S. 50, 80 (1976) (concurring opinion). This fundamental sovereign power of local governments to control land use is especially vital to Indians, who enjoy a unique historical and cultural connection to the land. See, e. g., FPC v. Tuscarora Indian Nation, 362 U. S. 99, 142 (1960) (Black, J., dissenting). And how can anyone doubt that a tribe's inability to zone substantial tracts of fee land within its own reservation — tracts that are inextricably intermingled with reservation trust lands — would destroy the tribe's ability to engage in the systematic and coordinated utilization of land that is the very essence of zoning authority? See N. Williams, American Land Planning Law § 1.08 (1988). In Merrion, we held that the power to impose a severance tax on non-Indian oil and gas producers on the reservation was "an inherent power necessary to tribal self-government and territorial management." 455 U. S., at 141. I am hard pressed to find any reason why zoning authority, a critical aspect of self-government and the ultimate instrument of "territorial management," should not be deemed to lie within the inherent sovereignty of the tribes as well. Thus, if Montana is to fit at all within this Court's Indian sovereignty jurisprudence, zoning authority — even over fee lands — must fall within the scope of tribal jurisdiction under Montana.

[459] A finding of inherent zoning authority here would in no way conflict with Montana's actual holding. As we explicitly recognized in Mescalero Apache, 462 U. S., at 331, n. 12, the critical difficulty in Montana was the Tribe's failure even to allege that the non-Indians whose fishing and hunting it sought to regulate were in any measure affecting an identifiable tribal interest. See 450 U. S., at 558, n. 6. Indeed, Montana, as it subsequently appears in our cases, stands for no more than that tribes may not assert their civil jurisdiction over nonmembers on fee lands absent a showing that, in Montana's words, the non-Indians' "conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Id., at 566.

3

JUSTICE WHITE'S opinion rejects this reading of Montana for several reasons, none of which withstand scrutiny. First, his opinion notes that Montana's recognition of tribal sovereignty over non-Indian conduct that threatens the political and economic integrity or health or welfare of the tribe is prefaced by the word "may" — a linguistic turn that the majority reads as suggesting that such tribal sovereignty is not always retained. Ante, at 428. Read in context, I think it clear that the Court's use of the word "may" was not an expression of doubt about the existence of tribal sovereignty under the enumerated circumstances, but, rather, was a reflection of the obvious fact that the comment was pure dictum. A more definitive statement on an issue not presented in the case surely would have been inappropriate.

Second, JUSTICE WHITE'S opinion suggests that applying Montana's language literally to the problem of zoning fee lands would create the peculiar, and untenable, situation of having zoning authority vary over time between the tribe and the State depending on what effect a proposed land use might have on the tribe. Ante, at 429-430. This hypothetical problem is entirely of JUSTICE WHITE'S own creation. [460] Montana's literal language does not require, as he claims, a parcel-by-parcel, use-by-use determination whether a proposed use of fee land will threaten the political integrity, economic security, or health or welfare of the tribe. The threat to the tribe does not derive solely from the proposed uses of specific parcels of fee lands (which admittedly would vary over time and place). The threat stems from the loss of the general and longer term advantages of comprehensive land management.

What the majority offers the tribes falls far short of meeting their legitimate needs. JUSTICE WHITE'S opinion fashions a newfangled federal nuisance-type cause of action by which the tribe may bring suit in federal court to enjoin a particular proposed land use that seriously imperils the political integrity, economic security, or health or welfare of the tribe. Ante, at 431-432. While resort to this proposed cause of action may ultimately prevent blatantly abusive non-Indian uses of reservation lands, the opportunity to engage in protracted litigation over every proposed land use that conflicts with tribal interests does nothing to recognize the tribe's legitimate sovereign right to regulate the lands within its reservation, with the view to the long-term, active management of land use that is the very difference between zoning and case-by-case nuisance litigation.

JUSTICE WHITE'S opinion also claims that it is acting here to protect the expectations of landowners. I agree that the need for certainty in zoning laws is a valid concern. But if JUSTICE WHITE'S true concern were with practical consequences, he would never adopt the rule he proposes today. Because we know that the Tribe, and only the Tribe, has authority to zone the trust lands within the reservation, JUSTICE WHITE'S opinion, and a majority of the Court with respect to the "open" area, have established a regime that guarantees that neither the State nor the Tribe will be able to establish a comprehensive zoning plan. Although under the majority's rule landowners may be certain as to which [461] zoning authority controls the use of their land, adjoining parcels of land throughout the "open" area of the reservation (and throughout the entire reservation under JUSTICE WHITE'S theory) will be zoned by different zoning authorities with competing and perhaps inconsistent land-use priorities.^[26] This, in practice, will be nothing short of a nightmare, nullifying the efforts of both sovereigns to segregate incompatible land uses and exacerbating the already considerable tensions that exist between local and tribal governments in many parts of the Nation about the best use of reservation lands.

In any event, JUSTICE WHITE'S opinion does not really explain why the general inability of a tribe to control land use on numerous tracts of land interspersed across its reservation does not inherently threaten the political integrity, economic security, or health or welfare of the tribe. Instead, the opinion claims that to hold that tribes have inherent zoning power over non-Indian fee lands would be to hold that tribes can exercise every police power over such lands, and that such a holding is contrary to the result in Montana itself. Ante, at 428-429.

This concern is misplaced. It does not necessarily follow that a finding of inherent zoning authority over fee lands on a checkerboarded reservation, an authority indispensable to the fulfillment of a tribe's uncontested right to zone its trust lands, also entails a finding of inherent authority for all police powers. As Montana itself demonstrates, there may be cases in which tribes assert the power to regulate activities [462] as to which they have no valid interest.^[27] Zoning is clearly not such a case.

4

In short, it is my view that under all of this Court's inherent sovereignty decisions, including Montana, tribes retain the power to zone non-Indian fee lands on the reservation. JUSTICE WHITE'S opinion presents not a single thread of logic for the proposition that such zoning power is inconsistent with the overriding interest of the National Government, and therefore necessarily divested, or that such zoning power is not fundamental to the political and economic security of the tribe, and therefore reserved to the tribe by the plain language of Montana. Instead, at the expense of long-recognized tribal rights, many of our precedents, and 150 years of federal policy, JUSTICE WHITE'S opinion replaces sovereignty with a form of legal tokenism: the opportunity to sue in court has replaced the opportunity to exercise sovereign authority. This substitution is without sound basis in law, and without practical value.

B

While JUSTICE WHITE'S opinion misreads the Court's decisions defining the limits of inherent tribal sovereignty, JUSTICE STEVENS' opinion disregards those decisions altogether. By grounding the Tribe's authority to zone non-Indian fee lands exclusively in its power to exclude non-Indians from the reservation, and by refusing even to consider whether the Tribe's inherent authority might support the zoning of non-Indian fee lands in the "open area," JUSTICE STEVENS' opinion appears implicitly to conclude that tribes have no inherent authority over non-Indians on reservation lands. As [463] is evident from my discussion of JUSTICE WHITE'S opinion, this conclusion stands in flat contradiction to every relevant Indian sovereignty case that this Court has decided.

JUSTICE STEVENS' opinion also is at odds with this Court's reservation disestablishment decisions. See, e. g., Seymour v. Superintendent of Washington State Penitentiary, 368 U. S. 351 (1962); Mattz v. Arnett, 412 U. S. 481 (1973); Moe v. Confederated Salish and Kootenai Tribes, 425 U. S. 463 (1976). JUSTICE STEVENS distinguishes between the "open" and "closed" areas of the reservation on the ground that Congress, in enacting the Dawes Act, could not have intended for tribes to maintain zoning authority over non-Indian fee lands where, as in the "open area" of the Yakima Reservation, the allotment of reservation lands "has produced an integrated community that is not economically or culturally delimited by reservation boundaries." Ante, at 444. I fail to see how this distinction can be squared with this Court's decisions specifically rejecting arguments that those reservation areas where the Dawes Act has resulted in substantial non-Indian land ownership should be treated differently for jurisdictional purposes from those areas where tribal holdings predominate. See, e. g., Seymour, 368 U. S., at 357-359. And I do not see how JUSTICE STEVENS' theory can be squared with the unequivocal holdings of our cases that the Dawes Act did not diminish the reservation status of reservation lands alienated to non-Indian owners even where that part of the reservation had " `lost its [Indian] identity.' " See, e. g., Mattz, 412 U. S., at 484-485.

Precedents aside, JUSTICE STEVENS' opinion points to no authority, either in the text of the Dawes Act or its legislative history, in support of its critical conjecture that "[a]lthough it is inconceivable that Congress would have intended that the sale of a few lots would divest the Tribe of the power to determine the character of the tribal community, it is equally improbable that Congress envisioned that the Tribe would retain its interest in regulating the use of vast ranges [464] of land sold in fee to nonmembers who lack any voice in setting tribal policy." Ante, at 437; see also ante, at 446-447. Moreover, even if JUSTICE STEVENS is right about congressional intent at the time of the Dawes Act, why should this matter? "The policy of allotment and sale of surplus reservation land was repudiated in 1934 by the Indian Reorganization Act, 48 Stat. 984, now amended and codified as 25 U. S. C. § 461 et seq." Mattz, 412 U. S., at 496, n. 18; see also Moe, 425 U. S., at 479. Surely, in considering whether Congress intended tribes to enjoy civil jurisdiction, including zoning authority, over non-Indian fee lands in reservation areas where non-Indian ownership predominates, this Court should direct its attention not to the intent of the Congress that passed the Dawes Act, but rather to the intent of the Congress that repudiated the Dawes Act, and established the Indian policies to which we are heir. This 1934 Congress, as definitively interpreted by the Executive Branch at the time, intended that tribal civil jurisdiction extend over " `all the lands of the reservation, whether owned by the tribe, by members thereof, or by outsiders.' " See n. 4, supra, quoting Powers of Indian Tribes, 55 I. D. 14, 50 (1934).

On a practical level, JUSTICE STEVENS' approach to zoning authority poses even greater difficulties than JUSTICE WHITE'S approach. JUSTICE STEVENS' opinion not only would establish a self-defeating regime of "checkerboard" zoning authority in "open" areas of every reservation, but it would require an intrinsically standardless threshold determination as to when a section of a reservation contains sufficient non-Indian land holdings to warrant an "open" classification. JUSTICE STEVENS' opinion suggests no benchmark for making this determination, and I can imagine none.

Moreover, to the extent that JUSTICE STEVENS' opinion discusses the characteristics of a reservation area where the Tribe possesses authority to zone because it has preserved the "essential character of the reservation," these characteristics betray a stereotyped and almost patronizing view [465] of Indians and reservation life. The opinion describes the "closed area" of the Yakima Reservation as "pristine," and emphasizes that it is spiritually significant to the Tribe and yields natural foods and medicines. Ante, at 439, 439-440. The opinion then contrasts this unadulterated portion of the reservation with the "open area," which is "marked by `residential and commercial developmen[t].' " Ante, at 445 (citation omitted). In my view, even under JUSTICE STEVENS' analysis, it must not be the case that tribes can retain the "essential character" of their reservations (necessary to the exercise of zoning authority), ibid., only if they forgo economic development and maintain those reservations according to a single, perhaps quaint, view of what is characteristically "Indian" today.

In sum, because JUSTICE STEVENS' opinion proposes an approach to tribal authority radically different from, and inconsistent with, our past decisions, because this approach rests on irrelevant conjecture about congressional intent, and because the approach is generally unsound, I cannot concur even partially in JUSTICE STEVENS' opinion, however partially attractive its results. Our past decisions and common sense compel a finding that the Tribe has zoning authority over all the lands within its reservation.

II

Having concluded that the Tribe has the inherent authority to zone non-Indian fee lands, the question remains whether this authority is exclusive or whether it is coextensive with the authority of the State acting through the county. This is not the place for an extended discussion of Indian preemption law. Suffice it to say that our cases recognize that the States have authority to exercise jurisdiction over non-Indian activities on the reservation, see, e. g., New Mexico v. Mescalero Apache Tribe, 462 U. S. 324 (1983), but that this authority is pre-empted if it either "unlawfully infringe[s] `on the right of reservation Indians to make their own [466] laws and be ruled by them,' " White Mountain Apache, 448 U. S., at 142, quoting Williams v. Lee, 358 U. S., at 220, or "interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority," Mescalero Apache, 462 U. S., at 334. Applying this test, the Court has recognized coextensive state and tribal civil jurisdiction where the exercise of concurrent authority does not do violence to the rights of either sovereign. See, e. g., Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134 (1980) (state taxation of on-reservation cigarette purchases does not intrude upon or diminish the Tribe's authority also to tax).

In my view, however, concurrent zoning jurisdiction by its very nature is unworkable. Concurrent zoning authority has the practical effect of nullifying the zoning authority of both sovereigns in every instance where the two establish different permissible land uses for the same tract of land. Presumably, under a scheme of concurrent jurisdiction, every proposed land use would have to satisfy the more stringent of the two competing zoning codes. Such a system obviously would defeat the efforts of both sovereigns to establish comprehensive plans for the systematic use of the lands within their respective jurisdictions.

This Court confronted a similar problem in Mescalero Apache. There, the State sought concurrent jurisdiction over non-Indian hunting and fishing on the reservation, even though the State's regulations were in conflict with, and sometimes more restrictive than, the Tribe's regulations. We held that state authority was pre-empted. "It is important to emphasize," the Court stated, "that concurrent jurisdiction would effectively nullify the Tribe's authority to control hunting and fishing on the reservation. Concurrent jurisdiction would empower New Mexico wholly to supplant tribal regulations." 462 U. S., at 338. The same holds true here. Concurrent jurisdiction would defeat the Tribe's ability [467] to regulate land use on reservation fee lands and, moreover, significantly would impair its ability to zone its trust lands, which in many areas are intermingled with lands over which the State would exercise controlling authority. Accordingly, although the State may assert zoning authority on the reservation in areas where the tribe has not exercised its zoning powers, once a tribe chooses to assert its zoning authority, that authority must be exclusive.^[28]

This conclusion, though not derived from federal statutory law, finds considerable support in the Federal Government's active and "longstanding policy of encouraging tribal self-government." Iowa Mutual Ins. Co. v. LaPlante, 480 U. S., at 14. Federal Indian policy "includes Congress' overriding goal of encouraging `tribal self-sufficiency and economic development,' " Mescalero Apache, 448 U. S., at 335, quoting White Mountain Apache, 448 U. S., at 143, and we have long recognized that tribal authority over on-reservation conduct must be "construed generously in order to comport . . . with the federal policy of encouraging tribal independence." Id., at 144. I shall not rehearse the many federal statutes noted by the Court of Appeals that recognize tribal sovereignty and encourage tribal self-government. Some of these specifically facilitate and encourage tribal management of Indian resources and promote the transfer of zoning authority from the Federal Government to the tribe. See Confederated [468] Tribes and Bands of Yakima Indian Nation v. Whiteside, 828 F. 2d 529, 533 (CA9 1987).

Unlike the Court of Appeals, I find no room here for a remand to consider more closely the nature of the county's conflicting interests. When it is determined that the Tribe, which is the one entity that has the power to zone trust lands, also has the power to zone fee lands, the inherent unworkability of concurrent zoning requires the conclusion that the Tribe's power to zone, once it chooses to exercise that power, is exclusive. No further balancing of interests is required. Thus, I would hold that, as to both "open" and "closed" lands, the County of Yakima is without authority to zone reservation lands, including fee lands.^[29]

[1] Together with No. 87-1697, Wilkinson v. Confederated Tribes and Bands of the Yakima Indian Nation, and No. 87-1711, County of Yakima et al. v. Confederated Tribes and Bands of the Yakima Indian Nation, also on certiorari to the same court.

[2] Briefs of amici curiae urging reversal were filed for the State of Arizona et al. by Kenneth O. Eikenberry, Attorney General of Washington, and Timothy R. Malone, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Robert K. Corbin of Arizona, Jim Jones of Idaho, Frank J. Kelley of Michigan, Michael T. Greely of Montana, Brian McKay of Nevada, Hal Stratton of New Mexico, Nicholas J. Spaeth of North Dakota, David L. Wilkinson of Utah, and Joseph B. Meyer of Wyoming; for the State of South Dakota by Roger A. Tellinghuisen, Attorney General, and John P. Guhin, Deputy Attorney General; for Mendocino County et al. by Tom D. Tobin; for the city of Green Bay, Wisconsin, et al. by James L. Quarles III, William F. Lee, and Kathryn Bucher; for the town of Parker, Arizona, by John B. Weldon, Jr., Stephen E. Crofton and Gerald W. Hunt; for the Citizens Equal Rights Alliance, Inc., et al. by Kenn A. Pugh; for the National Association of Counties et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, Robert L. Deitz, and F. Henry Habicht II; and for the Quinault Property Owners Association et al. by Thomas M. Christ and Dennis D. Reynolds.

Briefs of amici curiae urging affirmance were filed for the Colorado River Indian Tribes by Alletta d'A. Belin and William G. Lavell; for the Confederated Tribes of the Colville Reservation et al. by Bruce E. Didesch, Allen H. Sanders, and Amy L. Crewdson; for the National Congress of American Indians et al. by Thomas E. Luebben and James A. Bowen; for the Navajo Nation by Steven J. Bloxham; for the Governing Council of the Pinoleville Indian Community by David J. Rapport; for the Three Affiliated Tribes of the Fort Berthold Reservation by Charles A. Hobbs; for the Standing Rock Sioux Tribe et al. by William R. Perry and Harry R. Sachse; and for the Swinomish Tribal Community et al. by Jeanette Wolfley, Thomas R. Acevedo, Jack F. Trope, Jeanne S. Whiteing, Dale T. White, Scott B. McElroy, W. Richard West, Jr., and Daniel A. Raas.

[3] The treaty further provides that no "white man, excepting those in the employment of the Indian Department, [shall] be permitted to reside upon the said reservation without permission of the tribe and the superintendent and agent." 12 Stat. 951, 952.

[4] At oral argument, counsel arguing for petitioners represented that a decision by the Bureau of Indian Affairs in April 1988, after the Court of Appeals issued its opinion here, has reopened the roads in the closed area to the public. Tr. of Oral Arg. 17. See App. to Brief for Petitioner Brendale 1a. According to counsel, there is no longer a closed area on the reservation. Tr. of Oral Arg. 17. Counsel for respondents agreed with this characterization, describing what had formerly been the closed area as the "reservation reserved area," based on the Yakima Nation's zoning designation for the area. Id., at 28. Despite these developments, JUSTICE STEVENS persists in treating the two areas differently, post, at 439-440, a position that is rejected by seven Members of the Court, see also, post, at 468, n. 10 (opinion of BLACKMUN, J.), and continues to rely on the District Court's findings of fact regarding the Brendale property, which are undermined by the change in circumstances. This opinion will continue to refer to the respective areas as the closed area and the open area, but for convenience only.

[5] Preparation of the EIS was underway when the Yakima Nation filed the present action in District Court.

[6] In addition to Brendale, Wilkinson, and Yakima County, the Yakima Nation named as defendants Jim Whiteside and two other County Commissioners of Yakima County, the Director of the Planning Department of Yakima County, the codeveloper of the Brendale property, and prospective purchasers of portions of the Wilkinson property. The developer and the prospective purchasers were dismissed as parties by order of the District Court. See Yakima Indian Nation v. Whiteside, 617 F. Supp. 735, 737, n. 1 (ED Wash. 1985) (Whiteside I); Yakima Indian Nation v. Whiteside, 617 F. Supp. 750, 751, n. 1 (ED Wash. 1985) (Whiteside II).

[7] The District Court found that Brendale's proposed development would disrupt soil conditions; cause a deterioration of air quality; change drainage patterns; destroy some trees and natural vegetation; cause a deterioration of wildlife habitat; alter the location and density of human population in the area; increase traffic, light, and the use of fuel wood; and require added police and fire protection as well as new systems for waste disposal. The court also found that a number of places of religious and cultural significance were located in the closed area and that much of the Tribe's income comes from lumber harvested from lands within the closed area. 617 F. Supp., at 741-742. Unlike the closed area, however, the District Court found that the open area had no unique religious or spiritual importance to the Yakima Nation and that the trust land in the vicinity of the proposed Wilkinson development did not provide a significant source of food for the Tribe. 617 F. Supp., at 755.

[8] The Court of Appeals then remanded to the District Court for findings of fact on the respective interests of the Yakima Nation and Yakima County in regulating the Wilkinson property, since the District Court had made such findings only concerning the Brendale property. Confederated Tribes and Bands of the Yakima Indian Nation v. Whiteside, 828 F. 2d 529, 536 (CA9 1987).

[9] Yakima County did not appeal the judgment of the District Court in Whiteside I, respecting the Brendale Property, App. 7, 11, and the only issue presented in its petition for certiorari concerned the Wilkinson property. Brendale and Wilkinson each petitioned for certiorari concerning their own property.

[10] Furthermore, the practical consequences of JUSTICE STEVENS' approach will be severe. JUSTICE STEVENS' conception of tribal zoning authority allows Indian tribes to obtain the power to zone by defining areas on their reservations that contain only a "small percentage" of fee lands. Post, at 437-438, n. 2. The uncertainty that would result from the necessarily case-by-case determination of which regulatory body (or bodies, see post, at 440-441, n. 3) has zoning jurisdiction over such land, not to mention the uncertainty as to when a tribe will attempt to assert such jurisdiction, would be far worse than that resulting from the scheme discussed infra, at 430-432, in which the contours of the zoning authority are clearly defined and resort to the courts to protect tribal interests should not often be required.

[11] Given our disposition of these cases, we need not address whether the Yakima Nation's retained sovereignty might also have been divested by treaty or statute. United States v. Wheeler, 435 U. S. 313, 323 (1978). See, e. g., Rice v. Rehner, 463 U. S. 713, 724 (1983).

[12] The Yakima Nation's reliance on statements about retained tribal sovereignty in National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845 (1985), and Iowa Mutual Ins. Co. v. LaPlante, 480 U. S. 9 (1987), is likewise misplaced. In neither of those cases did the Court decide whether the Indian Tribe had authority over the nonmembers involved. Instead, the Court established an exhaustion rule, allowing the tribal courts initially to determine whether they have jurisdiction, and left open the possibility that the exercise of jurisdiction could be later challenged in federal court. See 471 U. S., at 856-857; 480 U. S., at 16, 19.

[13] JUSTICE BLACKMUN contends that upholding zoning authority does not necessarily "entai[l] a finding of inherent authority for all police powers," reasoning that "[a]s Montana itself demonstrates, there may be cases in which tribes assert the power to regulate activities as to which they have no valid interest." Post, at 461-462. The errors in this reasoning are twofold. First, JUSTICE BLACKMUN characterizes the decision in Montana incorrectly. The Court did not hold in Montana that the Tribe had no interest in regulating non-Indian fishing and hunting on fee land. Instead, it held that the Tribe lacked an interest sufficient "to justify tribal regulation." 450 U. S., at 566. Second, JUSTICE BLACKMUN's reasoning confirms, rather than disproves, that recognizing zoning authority here will equate tribal retained sovereignty with the police power. Under JUSTICE BLACKMUN's view, tribes evidently lack authority to exercise a power within the police power only when they have no legitimate interest in the regulation. But this is a meaningless limitation because to be a valid exercise of the police power in the first instance a government regulation must be rationally related to a legitimate state interest. See, e. g., Williamson v. Lee Optical Co., 348 U. S. 483, 491 (1955).

[14] JUSTICE BLACKMUN asserts that his position, that "the general and longer term advantages of comprehensive land management" justify tribal zoning of fee land, avoids this uncertainty. Post, at 460. But this broad position would also authorize the Yakima Nation to zone all fee land within reservation boundaries, including that within the incorporated towns of Toppenish, Wapato, and Harrah. Although JUSTICE BLACKMUN purports to avoid this "difficult question," post, at 467, n. 9, there appears to be no principled basis on which to exclude the incorporated towns from the Tribe's zoning authority without leading to the very uncertainty JUSTICE BLACKMUN attempts to dismiss as hypothetical, post, at 459.

[15] Cf. Oneida Indian Nation v. County of Oneida, 414 U. S. 661, 677 (1974).

[16] About 90 million acres of tribal land were alienated through allotment and sale of surplus lands by 1934, amounting to approximately two-thirds of the total land held by Indian tribes in 1887. See Cohen 614 (citing Office of Indian Affairs, Dept. of Interior, Indian Land Tenure, Economic Status, and Population Trends (1935)).

[17] The labels "closed area" and "open area" are, of course, irrelevant to my analysis. What is important is that the Tribe has maintained a defined area in which only a very small percentage of the land is held in fee and another defined area in which approximately half of the land is held in fee.

[18] Because the county did not appeal, we are not presented with the question whether the county might possess concurrent zoning jurisdiction over the closed area. The possibility that the county might have jurisdiction to prohibit certain land uses in the closed area does not suggest that the Tribe lacks similar authority. This sort of concurrent jurisdiction, if it does exist, is simply a product of the unique overlapping of governmental authority that characterizes much of our Indian-law jurisprudence. See, e. g., Cotton Petroleum Corp. v. New Mexico, 490 U. S. 163 (1989). Moreover, overlapping land-use regulations are not inherently suspect. The developer of land in the vicinity of an airport, for example, must comply with local zoning laws and federal limitations on the height of buildings that may obstruct air travel. Likewise, federal and state environmental protection requirements may be superimposed on county or tribal zoning ordinances. Although the potential for conflict between a county's rules and a tribe's rules is certainly substantial, it is neither inevitable nor incapable of resolution by a tolerant and cooperative approach to the problems that are generated by the continuing growth and complexity of our diverse society.

[19] According to the 1980 Census, the total population of the portion of the Yakima Reservation within Yakima County is 24,750, of whom 4,908 are Indians. U. S. Dept. of Commerce, Bureau of Census, 1980 Census of Population 49-460 (Table 192) (1983).

[20] F. Cohen, Handbook of Federal Indian Law 235 (1982). See also Worcester v. Georgia, 6 Pet. 515, 560-561 (1832): "[T]he settled doctrine of the law of nations is, that a weaker power does not surrender its independence — its right to self-government, by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state."

[21] See Cherokee Nation v. Georgia, 5 Pet. 1 (1831); Worcester v. Georgia, 6 Pet. 515 (1832); see also Johnson v. McIntosh, 8 Wheat. 543 (1823).

[22] JUSTICE WHITE'S opinion asserts that Wheeler "made clear" that all tribal regulatory authority over relations with non-Indians is necessarily inconsistent with their dependent status and, therefore, divested. Ante, at 427. Wheeler says no such thing, as is clear when JUSTICE WHITE'S opinion's selective quotation is placed in context. The issue in Wheeler was whether the conviction of an Indian in tribal court on a charge of contributing to the delinquency of a minor was a federal prosecution such that a second criminal proceeding arising from the same incident would be barred under the Double Jeopardy Clause. The resolution of this issue turned on whether the Tribe's criminal jurisdiction over the Indian defendant stemmed from its own inherent authority or, instead, from federal authority delegated to the Tribe by Congress. After discussing at some length the general rule that Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status, 435 U. S., at 323, the Court held that the Tribe retained inherent authority to punish Indian offenders. The Court first noted that Congress, far from divesting tribes of this power, had consistently recognized it. The Court then turned to the question whether criminal jurisdiction was necessarily divested by virtue of the dependent status of the tribes. The Court stated:

"[T]he sovereign power of a tribe to prosecute its members for tribal offenses clearly does not fall within that part of sovereignty which the Indians implicitly lost by virtue of their dependent status. The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe. Thus, Indian tribes can no longer freely alienate to non-Indians the land they occupy. . . . They cannot enter into direct commercial or governmental relations with foreign nations. And, as we have recently held, they cannot try nonmembers in tribal courts.

"These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the power of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe." Id., at 326 (citations omitted).

Clearly, nothing in this discussion suggests that tribes have lost all inherent sovereignty over tribal relations with non-Indians. (Indeed, the Court in Wheeler had no cause to address this issue.) Wheeler simply stands for the uncontroversial proposition that those specific aspects of inherent sovereignty that necessarily have been divested (criminal jurisdiction over non-Indians, alienation of land, and foreign relations) involve tribal relations with non-Indians. Notably, JUSTICE WHITE'S proposed reading of Wheeler is in direct conflict with Montana, which explicitly recognizes that tribes retain some inherent authority over non-Indians. Montana v. United States, 450 U. S. 544, 565-566 (1981).

[23] Our understanding is consistent with the definitive administrative interpretation of inherent Indian sovereignty: "But over all the lands of the reservation, whether owned by the tribe, by members thereof, or by outsiders, the tribe has the sovereign power of determining the conditions upon which persons shall be permitted to enter its domain, to reside therein, and to do business." Powers of Indian Tribes, 55 I. D. 14, 50 (1934).

[24] JUSTICE WHITE would read Iowa Mutual Ins. Co. v. LaPlante as not reaching the question whether tribal courts have civil jurisdiction over non-Indians, and dismisses the case as establishing no more than an "exhaustion rule" permitting tribal courts to determine their jurisdiction, or lack thereof, in the first instance. Ante, at 427, n. 10. See also National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845 (1985). JUSTICE WHITE, however, has read too little. In holding that the issue of jurisdiction over a civil suit brought against a non-Indian arising from a tort occurring on reservation land must be resolved in the tribal courts in the first instance, Iowa Mutual does reaffirm the exhaustion rule established in National Farmers Union. But Iowa Mutual also stands for the proposition that civil jurisdiction over non-Indians is a recognized part of inherent tribal sovereignty and exists "unless affirmatively limited by a specific treaty provision or federal statute." 480 U. S., at 18.

[25] Indeed, the only citations that I have found of Montana's rule governing tribal sovereignty appear in the dissent to our decision upholding tribal taxing authority over non-Indians in Merrion v. Jicarilla Apache Tribe, 455 U. S. 130, 171 (1982), and in a dissent from the denial of certiorari in a case where the Court of Appeals upheld tribal civil jurisdiction over non-Indians. City of Polson v. Confederated Salish and Kootenai Tribes, 459 U. S. 977 (1982).

[26] The checkerboarding problem is evident in this case: Wilkinson's property is bounded by trust land to the north, and fee land to the south, east, and west. Yakima Indian Nation v. Whiteside, 617 F. Supp. 750, 754 (ED Wash. 1985). Other fee lands are "scattered throughout the reservation in a checkerboard pattern." Confederated Tribes and Bands of Yakima Indian Nation v. Whiteside, 828 F. 2d 529, 531 (CA9 1987).

[27] "The complaint in this case did not allege that non-Indian hunting and fishing on reservation lands has impaired" the tribe's hunting and fishing rights. Montana, 450 U. S., at 558, n. 6. Moreover, the complaint "did not allege that non-Indian hunting and fishing on fee lands imperil[ed] the subsistence or welfare of the Tribe." Id., at 566.

[28] It may be that on some reservations, including the Yakima Reservation, there are essentially self-contained, definable, areas in which non-Indian fee lands so predominate that the tribe has no significant interest in controlling land use. I note that the Yakima Reservation includes three incorporated towns — Harrah, Toppenish, and Wapato — that comprise almost exclusively non-Indian fee lands. Confederated Tribes and Bands of the Yakima Indian Nation v. Whiteside, 828 F. 2d, at 531. Since the Tribe never has attempted to zone lands within the incorporated towns, this litigation does not present the difficult question whether the Tribe's interest in comprehensive zoning is sufficient to justify its exercise of zoning authority over a discrete portion of the reservation which includes no appreciable percentage of trust lands.

[29] I agree with JUSTICE WHITE, ante, at 415-416, n. 2, that subsequent events have obliterated the distinction between the so-called "open" and "closed" areas of the reservation that informed both the District Court and the Court of Appeals decisions. Absent this distinction, I see no difference between the Brendale and Wilkinson properties and, therefore, disagree with the Court of Appeals that these cases should be remanded to the District Court for consideration of the State's interest in zoning the Wilkinson property. As the Court of Appeals concluded, the Tribe has established a sufficient interest in zoning the Wilkinson property to support its inherent power to zone. Because of the unworkability of concurrent zoning, the State is pre-empted from zoning that land.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

[439] [440] [441] Ginsburg, J., delivered the opinion for a unanimous Court.

Melody L. McCoy argued the cause for petitioners. With her on the brief was Donald R. Wharton.

Jonathan E. Nuechterlein argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Dellinger, Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, and Edward J. Shawaker.

Patrick J. Ward argued the cause and filed a brief for respondents.^[1]

[442] Justice Ginsburg, delivered the opinion of the Court.

This case concerns the adjudicatory authority of tribal courts over personal injury actions against defendants who are not tribal members. Specifically, we confront this question: When an accident occurs on a portion of a public highway maintained by the State under a federally granted right-of-way over Indian reservation land, may tribal courts entertain a civil action against an allegedly negligent driver and the driver's employer, neither of whom is a member of the tribe?

Such cases, we hold, fall within state or federal regulatory and adjudicatory governance; tribal courts may not entertain claims against nonmembers arising out of accidents on state highways, absent a statute or treaty authorizing the tribe to govern the conduct of nonmembers on the highway in question. We express no view on the governing law or proper forum when an accident occurs on a tribal road within a reservation.

I

In November 1990, petitioner Gisela Fredericks and respondent Lyle Stockert were involved in a traffic accident on a portion of a North Dakota state highway running through the Fort Berthold Indian Reservation. The highway strip crossing the reservation is a 6.59-mile stretch of road, open to the public, affording access to a federal water resource project. North Dakota maintains the road under a right-ofway [443] granted by the United States to the State's Highway Department; the right-of-way lies on land held by the United States in trust for the Three Affiliated Tribes (Mandan, Hidatsa, and Arikara) and their members.

The accident occurred when Fredericks' automobile collided with a gravel truck driven by Stockert and owned by respondent A-1 Contractors, Stockert's employer. A-1 Contractors, a non-Indian-owned enterprise with its principal place of business outside the reservation, was at the time under a subcontract with LCM Corporation, a corporation wholly owned by the Tribes, to do landscaping work related to the construction of a tribal community building. A-1 Contractors performed all work under the subcontract within the boundaries of the reservation.^[2] The record does not show whether Stockert was engaged in subcontract work at the time of the accident. Neither Stockert nor Fredericks is a member of the Three Affiliated Tribes or an Indian. Fredericks, however, is the widow of a deceased member of the Tribes and has five adult children who are tribal members.^[3]

Fredericks sustained serious injuries in the accident and was hospitalized for 24 days. In May 1991, she sued respondents A-1 Contractors and Stockert, as well as A-1 Contractors' insurer, in the Tribal Court for the Three Affiliated Tribes of the Fort Berthold Reservation. In the same lawsuit, Fredericks' five adult children filed a loss-of-consortium [444] claim. Together, Fredericks and her children sought damages exceeding $13 million. App. 8-10.

Respondents and the insurer made a special appearance in the Tribal Court to contest that court's personal and subject-matter jurisdiction. The Tribal Court ruled that it had authority to adjudicate Gisela Fredericks' case, and therefore denied respondents' motion to dismiss the action. Id., at 24-25.^[4] Respondents appealed the Tribal Court's jurisdictional ruling to the Northern Plains Inter tribal Court of Appeals, which affirmed. Id., at 36. Thereafter, pursuant to the parties' stipulation, the Tribal Court dismissed the insurer from the suit. See id., at 38-40.

Before Tribal Court proceedings resumed, respondents commenced this action in the United States District Court for the District of North Dakota. Naming as defendants Fredericks, her adult children, the Tribal Court, and Tribal Judge William Strate, respondents sought a declaratory judgment that, as a matter of federal law, the Tribal Court lacked jurisdiction to adjudicate Fredericks' claims. The respondents also sought an injunction against further proceedings in the Tribal Court. See id., at 41-45.

Relying particularly on this Court's decisions in National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845 (1985), and Iowa Mut. Ins. Co. v. LaPlante, 480 U. S. 9 (1987), the District Court determined that the Tribal Court had civil jurisdiction over Fredericks' complaint against A-1 Contractors and Stockert; accordingly, on cross-motions for summary judgment, the District Court dismissed the action. App. 54-67. On appeal, a divided panel of the United States Court of Appeals for the Eighth Circuit affirmed. App. 68— 90. The Eighth Circuit granted rehearing en banc and, in an 8-to-4 decision, reversed the District Court's judgment. [445] 76 F. 3d 930 (1996). The Court of Appeals concluded that our decision in Montana v. United States, 450 U. S. 544 (1981), was the controlling precedent, and that, under Montana, the Tribal Court lacked subject-matter jurisdiction over the dispute.^[5]

We granted certiorari, 518 U. S. 1056 (1996), and now affirm.

II

Our case law establishes that, absent express authorization by federal statute or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited circumstances. In Oliphant v. Suquamish Tribe, 435 U. S. 191 (1978), the Court held that Indian tribes lack criminal jurisdiction over non-Indians.^[6] Montana v. United States, decided three years later, is the pathmarking case concerning tribal civil authority over nonmembers. Montana concerned the authority of the Crow Tribe to regulate hunting and fishing by non-Indians on lands within the Tribe's reservation owned in fee simple by non-Indians. The Court said in Montana that the restriction on tribal criminal jurisdiction recognized in Oliphant rested on principles that support a more "general proposition." 450 U. S., at 565. In the main, the Court explained, "the inherent sovereign powers of an Indian tribe"—those powers a tribe enjoys apart from express provision by treaty or statute—"do not extend to the activities [446] of nonmembers of the tribe." Ibid. The Montana opinion added, however, that in certain circumstances, even where Congress has not expressly authorized it, tribal civil jurisdiction may encompass nonmembers:

"To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Id., at 565-566 (citations and footnote omitted).

The term "non-Indian fee lands," as used in this passage and throughout the Montana opinion, refers to reservation land acquired in fee simple by non-Indian owners. See id., at 548.

Montana thus described a general rule that, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation, subject to two exceptions: The first exception relates to nonmembers who enter consensual relationships with the tribe or its members; the second concerns activity that directly affects the tribe's political integrity, economic security, health, or welfare. The Montana Court recognized that the Crow Tribe retained power to limit or forbid hunting or fishing by nonmembers on land still owned by or held in trust for the Tribe. Id., at 557. The Court held, however, that the Tribe lacked authority to regulate hunting and fishing by non-Indians on land within the Tribe's [447] reservation owned in fee simple by non-Indians. Id., at 564-567.^[7]

Petitioners and the United States as amicus curiae urge that Montana does not control this case. They maintain that the guiding precedents are National Farmers and Iowa Mutual, and that those decisions establish a rule converse to Montana `s. Whatever Montana may instruct regarding regulatory authority, they insist, tribal courts retain adjudicatory authority in disputes over occurrences inside a reservation, even when the episode-in-suit involves nonmembers, unless a treaty or federal statute directs otherwise. Petitioners, further supported by the United States, argue, alternately, that Montana does not cover lands owned by, or held [448] in trust for, a tribe or its members. Montana holds sway, petitioners say, only with respect to alienated reservation land owned in fee simple by non-Indians. We address these arguments in turn.

A

We begin with petitioners' contention that National Farmers and Iowa Mutual broadly confirm tribal-court civil jurisdiction over claims against nonmembers arising from occurrences on any land within a reservation. We read our precedent differently. National Farmers and Iowa Mutual, we conclude, are not at odds with, and do not displace, Montana. Both decisions describe an exhaustion rule allowing tribal courts initially to respond to an invocation of their jurisdiction; neither establishes tribal-court adjudicatory authority, even over the lawsuits involved in those cases. Accord, Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 427, n. 10 (1989) (opinion of White, J.).

National Farmers involved a federal-court challenge to a tribal court's jurisdiction over a personal injury action initiated on behalf of a Crow Indian minor against a Montana school district. The accident-in-suit occurred when the minor was struck by a motorcycle in an elementary school parking lot. The school occupied land owned by the State within the Crow Indian Reservation. See 471 U. S., at 847. The school district and its insurer sought a federal-court injunction to stop proceedings in the Crow Tribal Court. See id., at 848. The District Court granted the injunction, but the Court of Appeals reversed, concluding that federal courts lacked subject-matter jurisdiction to entertain such a case. See id., at 848-849.

We reversed the Court of Appeals' judgment and held that federal courts have authority to determine, as a matter "arising under" federal law, see 28 U. S. C. § 1331, whether a tribal court has exceeded the limits of its jurisdiction. See 471 U. S., at 852-853. We further held, however, that the federal [449] suit was premature. Ordinarily, we explained, a federal court should stay its hand "until after the Tribal Court has had a full opportunity to determine its own jurisdiction." Id., at 857. Finding no cause for immediate federal-court intervention,^[8] we remanded the case, leaving initially to the District Court the question "[w]hether the federal action should be dismissed, or merely held in abeyance pending . . . further Tribal Court proceedings." Ibid.

Petitioners underscore the principal reason we gave in National Farmers for the exhaustion requirement there stated. Tribal-court jurisdiction over non-Indians in criminal cases is categorically restricted under Oliphant, we observed, while in civil matters "the existence and extent of a tribal court's jurisdiction will require a careful examination of tribal sovereignty, the extent to which that sovereignty has been altered, divested, or diminished, as well as a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and administrative or judicial decisions." 471 U. S., at 855-856 (footnote omitted).

The Court's recognition in National Farmers that tribal courts have more extensive jurisdiction in civil cases than in criminal proceedings, and of the need to inspect relevant statutes, treaties, and other materials, does not limit Montana `s instruction. As the Court made plain in Montana, the general rule and exceptions there announced govern only in the absence of a delegation of tribal authority by treaty or statute. In Montana itself, the Court examined the treaties and legislation relied upon by the Tribe and explained [450] why those measures did not aid the Tribe's case. See 450 U. S., at 557-563. Only after and in light of that examination did the Court address the Tribe's assertion of "inherent sovereignty," and formulate, in response to that assertion, Montana `s general rule and exceptions to it. In sum, we do not extract from National Farmers anything more than a prudential exhaustion rule, in deference to the capacity of tribal courts "to explain to the parties the precise basis for accepting [or rejecting] jurisdiction." 471 U. S., at 857.

Iowa Mutual involved an accident in which a member of the Blackfeet Indian Tribe was injured while driving a cattle truck within the boundaries of the reservation. 480 U. S., at 11. The injured member was employed by a Montana corporation that operated a ranch on reservation land owned by Blackfeet Indians residing on the reservation. See ibid. The driver and his wife, also a Tribe member, sued in the Blackfeet Tribal Court, naming several defendants: the Montana corporation that employed the driver; the individual owners of the ranch; the insurer of the ranch; and an independent insurance adjuster representing the insurer. See ibid. Over the objection of the insurer and the insurance adjuster—both companies not owned by members of the Tribe—the Tribal Court determined that it had jurisdiction to adjudicate the case. See id., at 12.

Thereafter, the insurer commenced a federal-court action against the driver, his wife, the Montana corporation, and the ranch owners. See ibid. Invoking federal jurisdiction based on the parties' diverse citizenship, see 28 U. S. C. § 1332, the insurer alleged that it had no duty to defend or indemnify the Montana corporation or the ranch owners because the injuries asserted by the driver and his wife fell outside the coverage of the applicable insurance policies. See 480 U. S., at 12-13. The Federal District Court dismissed the insurer's action for lack of subject-matter jurisdiction, and the Court of Appeals affirmed. See id., at 13-14.

[451] We reversed. Holding that the District Court had diversity-of-citizenship jurisdiction over the insurer's complaint, we remanded, as in National Farmers, for a determination whether "the federal action should be stayed pending further Tribal Court proceedings or dismissed." 480 U. S., at 20, n. 14. The Court recognized in Iowa Mutual that the exhaustion rule stated in National Farmers was "prudential," not jurisdictional. 480 U. S., at 20, n. 14; see also id., at 16, n. 8 (stating that "[e]xhaustion is required as a matter of comity, not as a jurisdictional prerequisite"). Respect for tribal self-government made it appropriate "to give the tribal court a `full opportunity to determine its own jurisdiction.' " Id., at 16 (quoting National Farmers, 471 U. S., at 857). That respect, the Court reasoned, was equally in order whether federal-court jurisdiction rested on § 1331 (federal question) or on § 1332 (diversity of citizenship). 480 U. S., at 17-18. Elaborating on the point, the Court stated:

"Tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty. See Montana v. United States, 450 U. S. 544, 565-566 (1981); Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 152-153 (1980); Fisher v. District Court [of Sixteenth Judicial Dist. of Mont.], 424 U. S. [382,] 387-389 [(1976)]. Civil jurisdiction over such activities presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute. . . . In the absence of any indication that Congress intended the diversity statute to limit the jurisdiction of the tribal courts, we decline petitioner's invitation to hold that tribal sovereignty can be impaired in this fashion." Id., at 18.

Petitioners and the United States fasten upon the Court's statement that "[c]ivil jurisdiction over such activities presumptively lies in the tribal courts." Read in context, however, this language scarcely supports the view that the [452] Montana rule does not bear on tribal-court adjudicatory authority in cases involving nonmember defendants.

The statement stressed by petitioners and the United States was made in refutation of the argument that "Congress intended the diversity statute to limit the jurisdiction of the tribal courts." 480 U. S., at 18. The statement is preceded by three informative citations. The first citation points to the passage in Montana in which the Court advanced "the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe," 450 U. S., at 565, with two prime exceptions, id., at 565-566. The case cited second is Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134 (1980), a decision the Montana Court listed as illustrative of the first Montana exception, applicable to "nonmembers who enter consensual relationships with the tribe or its members," 450 U. S., at 565-566; the Court in Colville acknowledged inherent tribal authority to tax "non-Indians entering the reservation to engage in economic activity," 447 U. S., at 153. The third case noted in conjunction with the Iowa Mutual statement is Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U. S. 382 (1976) (per curiam), a decision the Montana Court cited in support of the second Montana exception, covering on-reservation activity of nonmembers bearing directly "on the political integrity, the economic security, or the health or welfare of the tribe." 450 U. S., at 566. The Court held in Fisher that a tribal court had exclusive jurisdiction over an adoption proceeding when all parties were members of the tribe and resided on its reservation. See 424 U. S., at 383, 389. State-court jurisdiction over such matters, the Court said, "plainly would interfere with the powers of self-government conferred upon the . . . Tribe and exercised through the Tribal Court." Id., at 387. The Court observed in Fisher that state courts may not exercise jurisdiction over disputes arising out of [453] on-reservation conduct—even over matters involving nonIndians—if doing so would "`infring[e] on the right of reservation Indians to make their own laws and be ruled by them.' " Id., at 386 (citation omitted).

In light of the citation of Montana, Colville, and Fisher, the Iowa Mutual statement emphasized by petitioners does not limit the Montana rule. In keeping with the precedent to which Iowa Mutual refers, the statement stands for nothing more than the unremarkable proposition that, where tribes possess authority to regulate the activities of nonmembers, "[c]ivil jurisdiction over [disputes arising out of] such activities presumptively lies in the tribal courts." 480 U. S., at 18.

Recognizing that our precedent has been variously interpreted, we reiterate that National Farmers and Iowa Mutual enunciate only an exhaustion requirement, a "prudential rule," see Iowa Mutual, 480 U. S., at 20, n. 14, based on comity, see id., at 16, n. 8. These decisions do not expand or stand apart from Montana `s instruction on "the inherent sovereign powers of an Indian tribe." 450 U. S., at 565. While Montana immediately involved regulatory authority, the Court broadly addressed the concept of "inherent sovereignty." Id., at 563. Regarding activity on non-Indian fee land within a reservation, Montana delineated—in a main rule and exceptions—the bounds of the power tribes retain to exercise "forms of civil jurisdiction over non-Indians." Id., at 565. As to nonmembers, we hold, a tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction. Absent congressional direction enlarging tribal-court jurisdiction, we adhere to that understanding. Subject to controlling provisions in treaties and statutes, and the two exceptions identified in Montana, the civil authority of Indian tribes and their courts with respect to non-Indian fee lands generally "do[es] not extend to the activities of nonmembers of the tribe." Ibid.

[454] B

We consider next the argument that Montana does not govern this case because the land underlying the scene of the accident is held in trust for the Three Affiliated Tribes and their members. Petitioners and the United States point out that in Montana, as in later cases following Montana `s instruction—Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408 (1989), and South Dakota v. Bourland, 508 U. S. 679 (1993), described supra, at 447, n. 6—the challenged tribal authority related to nonmember activity on alienated, non-Indian reservation land. We "can readily agree," in accord with Montana, 450 U. S., at 557, that tribes retain considerable control over nonmember conduct on tribal land.^[9] On the particular matter before us, however, we agree with respondents: The right-of-way North Dakota acquired for the State's highway renders the 6.59-mile stretch equivalent, for nonmember governance purposes,^[10] to alienated, non-Indian land.

Congress authorized grants of rights-of-way over Indian lands in 1948 legislation. Act of Feb. 5, 1948, ch. 45, 62 Stat. 17, 25 U. S. C. §§ 323-328. A grant over land belonging to a tribe requires "consent of the proper tribal officials," § 324, [455] and the payment of just compensation, § 325.^[11] The grant involved in this case was made, pursuant to the federal statute, in 1970. Its purpose was to facilitate public access to Lake Sakakawea, a federal water resource project under the control of the Army Corps of Engineers.

In the granting instrument, the United States conveyed to North Dakota "an easement for a right-of-way for the realignment and improvement of North Dakota State Highway No. 8 over, across and upon [specified] lands." App. to Brief for Respondents 1. The grant provides that the State's "easement is subject to any valid existing right or adverse claim and is without limitation as to tenure, so long as said easement shall be actually used for the purpose . . . specified." Id., at 3. The granting instrument details only one specific reservation to Indian landowners:

"The right is reserved to the Indian land owners, their lessees, successors, and assigns to construct crossings of the right-of-way at all points reasonably necessary to the undisturbed use and occupan[cy] of the premises affected by the right-of-way; such crossings to be constructed and maintained by the owners or lawful occupants and users of said lands at their own risk and said occupants and users to assume full responsibility for avoiding, or repairing any damage to the right-of-way, which may be occasioned by such crossings." Id., at 3-4.

Apart from this specification, the Three Affiliated Tribes expressly reserved no right to exercise dominion or control over the right-of-way.

Forming part of the State's highway, the right-of-way is open to the public, and traffic on it is subject to the State's [456] control.^[12] The Tribes have consented to, and received payment for, the State's use of the 6.59-mile stretch for a public highway. They have retained no gatekeeping right. So long as the stretch is maintained as part of the State's highway, the Tribes cannot assert a landowner's right to occupy and exclude. Cf. Bourland, 508 U. S., at 689 (regarding reservation land acquired by the United States for operation of a dam and a reservoir, Tribe's loss of "right of absolute and exclusive use and occupation ... implies the loss of regulatory jurisdiction over the use of the land by others"). We therefore align the right-of-way, for the purpose at hand, with land alienated to non-Indians. Our decision in Montana, accordingly, governs this case.

III

Petitioners and the United States refer to no treaty or statute authorizing the Three Affiliated Tribes to entertain highway-accident tort suits of the kind Fredericks commenced against A-1 Contractors and Stockert. Rather, petitioners and the United States ground their defense of tribal-court jurisdiction exclusively on the concept of retained or inherent sovereignty. Montana, we have explained, is the controlling decision for this case. To prevail here, petitioners must show that Fredericks' tribal-court action against nonmembers qualifies under one of Montana `s two exceptions.

The first exception to the Montana rule covers "activities of nonmembers who enter consensual relationships with the [457] tribe or its members, through commercial dealing, contracts, leases, or other arrangements." 450 U. S., at 565. The tortious conduct alleged in Fredericks' complaint does not fit that description. The dispute, as the Court of Appeals said, is "distinctly non-tribal in nature." 76 F. 3d, at 940. It "arose between two non-Indians involved in [a] run-of-themill [highway] accident." Ibid. Although A-1 was engaged in subcontract work on the Fort Berthold Reservation, and therefore had a "consensual relationship" with the Tribes, "Gisela Fredericks was not a party to the subcontract, and the [T]ribes were strangers to the accident." Ibid.

Montana `s list of cases fitting within the first exception, see 450 U. S., at 565-566, indicates the type of activities the Court had in mind: Williams v. Lee, 358 U. S. 217, 223 (1959) (declaring tribal jurisdiction exclusive over lawsuit arising out of on-reservation sales transaction between nonmember plaintiff and member defendants); Morris v. Hitchcock, 194 U. S. 384 (1904) (upholding tribal permit tax on nonmemberowned livestock within boundaries of the Chickasaw Nation); Buster v. Wright, 135 F. 947, 950 (CA8 1905) (upholding Tribe's permit tax on nonmembers for the privilege of conducting business within Tribe's borders; court characterized as "inherent" the Tribe's "authority . . . to prescribe the terms upon which noncitizens may transact business within its borders"); Colville, 447 U. S., at 152-154 (tribal authority to tax on-reservation cigarette sales to nonmembers "is a fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication of their dependent status"). Measured against these cases, the Fredericks-Stockert highway accident presents no "consensual relationship" of the qualifying kind.

The second exception to Montana `s general rule concerns conduct that "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." 450 U. S., at 566. Undoubtedly, those [458] who drive carelessly on a public highway running through a reservation endanger all in the vicinity, and surely jeopardize the safety of tribal members. But if Montana `s second exception requires no more, the exception would severely shrink the rule. Again, cases cited in Montana indicate the character of the tribal interest the Court envisioned.

The Court's statement of Montana `s second exceptional category is followed by citation of four cases, ibid.; each of those cases raised the question whether a State's (or Territory's) exercise of authority would trench unduly on tribal self-government. In two of the cases, the Court held that a State's exercise of authority would so intrude, and in two, the Court saw no impermissible intrusion.

The Court referred first to the decision recognizing the exclusive competence of a tribal court over an adoption proceeding when all parties belonged to the Tribe and resided on its reservation. See Fisher, 424 U. S., at 386; supra, at 452-453. Next, the Court listed a decision holding a tribal court exclusively competent to adjudicate a claim by a nonIndian merchant seeking payment from tribe members for goods bought on credit at an on-reservation store. See Williams, 358 U. S., at 220 ("[A]bsent governing Acts of Congress, the question [of state-court jurisdiction over onreservation conduct] has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them."). Thereafter, the Court referred to two decisions dealing with objections to a county or territorial government's imposition of a property tax on non-Indian-owned livestock that grazed on reservation land; in neither case did the Court find a significant tribal interest at stake. See Montana Catholic Missions v. Missoula County, 200 U. S. 118, 128-129 (1906) ("the Indians' interest in this kind of property [livestock], situated on their reservations, was not sufficient to exempt such property, when owned by private individuals, from [state or territorial] taxation"); Thomas v. Gay, 169 U. S. 264, 273 (1898) ("[territorial] [459] tax put upon the cattle of [non-Indian] lessees is too remote and indirect to be deemed a tax upon the lands or privileges of the Indians").

Read in isolation, the Montana rule's second exception can be misperceived. Key to its proper application, however, is the Court's preface: "Indian tribes retain their inherent power [to punish tribal offenders,] to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members. . . . But [a tribe's inherent power does not reach] beyond what is necessary to protect tribal self-government or to control internal relations." 450 U. S., at 564. Neither regulatory nor adjudicatory authority over the state highway accident at issue is needed to preserve "the right of reservation Indians to make their own laws and be ruled by them." Williams, 358 U. S., at 220. The Montana rule, therefore, and not its exceptions, applies to this case.

Gisela Fredericks may pursue her case against A-1 Contractors and Stockert in the state forum open to all who sustain injuries on North Dakota's highway.^[13] Opening the Tribal Court for her optional use is not necessary to protect tribal self-government; and requiring A-1 and Stockert to defend against this commonplace state highway accident claim in an unfamiliar court^[14] is not crucial to "the political integrity, the economic security, or the health or welfare of the [Three Affiliated Tribes]." Montana, 450 U. S., at 566.^[15]

[460] * * *

For the reasons stated, the judgment of the Court of Appeals for the Eighth Circuit is

Affirmed.

[1] Briefs of amici curiae urging reversal were filed for the Assiniboine and Sioux Tribes of the Fort Peck Reservation et al. by Reid Peyton Chambers; for the Northern Plains Tribal Judges Association by B. J. Jones; for the Shakopee Mdewakanton Sioux (Dakota) Community et al. by Kurt V. BlueDog and Richard A. Duncan; and for the Yavapai-Apache Nation et al. by Susan M. Williams and Gwenellen P. Janov.

Briefs of amici curiae urging affirmance were filed for the State of Montana et al. by Joseph P. Mazurek, Attorney General of Montana, Clay R. Smith, Solicitor, and Harley R. Harris, Assistant Attorney General, joined by the Attorneys General for their respective jurisdictions as follows: Grant Woods of Arizona, Daniel E. Lungren of California, Gale A. Norton of Colorado, Alan G. Lance of Idaho, Scott Harshbarger of Massachusetts, Mike Moore of Mississippi, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, Mark Barnett of South Dakota, Jan Graham of Utah, Christine O. Gregoire of Washington, James E. Doyle of Wisconsin, and William U. Hill of Wyoming; for Lake County, Montana, et al. by Jon Metropoulos; for the American Trucking Associations, Inc., et al. by Michele Odorizzi, Andrew J. Pincus, and Daniel R. Barney; and for the Council of State Governments et al. by Richard Ruda and Charles F. Lettow.

[2] Respondents statethat the subcontract had forum-selection and choice-of-law provisions selecting Utah state courts and Utah law for dispute resolution. See Brief for Respondents 2.Petitioners do not contest this point, but the subcontract is not part of the record in this case.

[3] The court of Appeals for the Eighth Circuit stated that petitioner Fredericks resideson the reservation. See 76 F. 3d 930,932 (1996) (en banc). Respondents assert, however, that there is an unresolved factual dispute regarding Fredericks' residence at the time of the accident.See Brief for Respondents 1-2,n. 2;Brief in opposition 3,n. 4. Under our disposition of the case, Fredericks' residence at the time of the accident is immaterial.

[4] Satisfied that it could adjudicate Gisela Fredericks' claims, the Tribal Court declined to address her adult children's consortium claim, App. 25; thus, no ruling on that claim is here at issue.

[5] Petitioner Fredericks has commenced a similar lawsuit in a North Dakota state court "to protect her rights against the running of the State's six-year statute of limitations."Reply Brief 6, n. 2.Respondents assert that they have answered the complaint and "are prepared to proceed in that forum." Brief for Respondents 8, n. 6.Respondents also note, without contradiction, that the state forum "is physically much closer by road to the accident scene . . . than [is] the tribal courthouse."Ibid.

[6] InDuro v.Reina, 495 U. S.676, 684-685 (1990), we held that Indian tribes also lack criminal jurisdiction over nonmember Indians.Shortly after our decision in Duro, Congress provided for tribal criminal jurisdiction over nonmember Indians. See 25 U. S. C. § 1301(2).

[7] Montana's statement of the governing law figured prominently in Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408 (1989), and in South Dakota v. Bourland, 508 U. S. 679 (1993). The Court held in Brendale, 6 to 3, that the Yakima Indian Nation lacked authority to zone nonmembers' land within an area of the Tribe's reservation open to the general public; almost half the land in the area was owned in fee by nonmembers. The Court also held, 5 to 4, that the Tribe retained authority to zone fee land in an area of the reservation closed to the general public. No opinion garnered a majority. Justice White, writing for four Members of the Court, concluded that, under Montana, the Tribe lacked authority to zone fee land in both the open and closed areas of the reservation. 492 U. S., at 422-432. Justice Stevens, writing for two Justices, concluded that the Tribe retained zoning authority over nonmember land only in the closed area. Id., at 443-444. Justice Blackmun, writing for three Justices, concluded that, under Montana `s second exception, the Tribe retained authority to zone fee land in both the open and the closed areas. Id.,at 456-459.

In Bourland, the Court considered whether the Cheyenne River Sioux Tribe could regulate hunting and fishing by non-Indians in an area within the Tribe's reservation, but acquired by the United States for the operation of a dam and a reservoir. We determined, dominantly, that no treaty or statute reserved to the Tribe regulatory authority over the area, see 508 U. S., at 697, and we left for resolution on remand the question whether either Montana exception applied, see 508 U. S., at 695-696; see also 39 F. 3d 868, 869-870 (CA8 1994) (decision of divided panel on remand that neither Montana exception justified regulation by the Tribe).

[8] The Court indicated in National Farmersthat exhaustion is not an unyielding requirement:

"We do not suggest that exhaustion would be required where an assertion of tribal jurisdiction `is motivated by a desire to harass or is conducted in bad faith,' or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court's jurisdiction." 471 U. S., at 856, n. 21 (citation omitted).

[9] Petitioners note in this regard the Court's unqualified recognition in Montana that "the Tribe may prohibit nonmembers from hunting or fishing on land belonging to the Tribe or held by the United States in trust for the Tribe." 450 U. S., at 557. The question addressed was "the power of the Tribe to regulate non-Indian fishing and hunting on reservation land owned in fee by nonmembers of the Tribe." Ibid.; see Brief for Petitioners 15-16.

[10] For contextual treatment of rights-of-way over Indian land, compare 18 U. S. C. § 1151 (defining "Indian country" in criminal law chapter generally to include "rights-of-way running through [a] reservation") with §§ 1154(c) and 1156 (term "Indian country," as used in sections on dispensation and possession of intoxicants, "does not include . . . rights-of-way through Indian reservations").

[11] Rights-of-way granted over lands of individual Indians also require payment of compensation, 25 U. S. C. § 325, and ordinarily require consent of the individual owners, see § 324 (describing circumstances in which rights-of-way may be granted without the consent of owners).

[12] We do not here question the authority of tribal police to patrol roads within a reservation, including rights-of-way made part of a state highway, and to detain and turn over to state officers nonmembers stopped on the highway forconduct violating statelaw. Cf.State v. Schmuck, 121 Wash. 2d 373, 390, 850 P. 2d 1332, 1341 (en banc) (recognizing that a limited tribal power "to stop and detain alleged offenders in no way confers an unlimited authority to regulate the right of the public to travel on the Reservation's roads"), cert. denied, 510 U. S. 931 (1993).

[13] See supra, at 445, n. 4.

[14] Within the federal system, when nonresidents are the sole defendants in a suit filed in state court, the defendants ordinarily may remove the case to federal court. See 28U. S. C.§ 1441.

[15] When, as in this case, it is plain that no federal grant provides for tribal governance of nonmembers' conduct on land covered by Montana `s main rule,it will be equally evident that tribal courts lack adjudicatory authority over disputes arising from such conduct. As in criminal proceedings, state or federal courts will be the only forums competent to adjudicate those disputes. See National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845, 854 (1985). Therefore, when tribal-court jurisdiction over an action such as this one is challenged in federal court, the otherwise applicable exhaustion requirement, see supra, at 449-450, must give way, for it would serve no purpose other than delay. Cf. National Farmers, 471 U. S., at 856, n. 21; supra, at 449, n. 7.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

[646] Rehnquist, C. J., delivered the opinion for a unanimous Court. Souter, J., filed a concurring opinion, in which Kennedy and Thomas, JJ., joined, post, p. 659.

Charles G. Cole argued the cause for petitioner. With him on the briefs were Shannen W. Coffin and William J. Darling.

Marcelino R. Gomez argued the cause and filed a brief for respondents.

Beth S. Brinkmann argued the cause for the United States as amicus curiae urging affirmance. On the brief were Acting Solicitor General Underwood, Acting Assistant [647] Attorney General Cruden, Deputy Solicitor General Kneedler, Edward C. DuMont, E. Ann Peterson, and William B. Lazarus.^[1]

Chief Justice Rehnquist delivered the opinion of the Court.

In Montana v. United States, 450 U. S. 544 (1981), we held that, with limited exceptions, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian fee land within a reservation. The question with which we are presented is whether this general rule applies to tribal attempts to tax nonmember activity occurring on non-Indian fee land. We hold that it does and that neither of Montana `s exceptions obtains here.

In 1916, Hubert Richardson, lured by the possibility of trading with wealthy Gray Mountain Navajo cattlemen, built the Cameron Trading Post just south of the Little Colorado River near Cameron, Arizona. G. Richardson, Navajo Trader 136-137 (1986). Richardson purchased the land [648] directly from the United States, but the Navajo Nation Reservation, which had been established in 1868, see 15 Stat. 667, was later extended eight miles south so that the Cameron Trading Post fell within its exterior boundaries. See Act of June 14, 1934, ch. 521, 48 Stat. 960-962. This 1934 enlargement of the Navajo Reservation—which today stretches across northeast Arizona, northwest New Mexico, and southeast Utah—did not alter the status of the property: It is, like millions of acres throughout the United States, non-Indian fee land within a tribal reservation.

Richardson's "drafty, wooden store building and four small, one-room-shack cabins overlooking the bare river canyon," Richardson, supra, at 135, have since evolved into a business complex consisting of a hotel, restaurant, cafeteria, gallery, curio shop, retail store, and recreational vehicle facility. The current owner, petitioner Atkinson Trading Company, Inc., benefits from the Cameron Trading Post's location near the intersection of Arizona Highway 64 (which leads west to the Grand Canyon) and United States Highway 89 (which connects Flagstaff on the south with Glen Canyon Dam to the north). A significant portion of petitioner's hotel business stems from tourists on their way to or from the Grand Canyon National Park.

In 1992, the Navajo Nation enacted a hotel occupancy tax, which imposes an 8 percent tax upon any hotel room located within the exterior boundaries of the Navajo Nation Reservation. See 24 Navajo Nation Code §§ 101-142 (1995), App. to Pet. for Cert. 102a—124a. Although the legal incidence of the tax falls directly upon the guests, the owner or operator of the hotel must collect and remit it to respondents, members of the Navajo Tax Commission. §§ 104, 107. The nonmember guests at the Cameron Trading Post pay approximately $84,000 in taxes to respondents annually.

Petitioner's challenge under Montana to the Navajo Nation's authority to impose the hotel occupancy tax was rejected by both the Navajo Tax Commission and the Navajo [649] Supreme Court. Petitioner then sought relief in the United States District Court for the District of New Mexico, which also upheld the tax. A divided panel of the Court of Appeals for the Tenth Circuit affirmed. See 210 F. 3d 1247 (2000).

Although the Court of Appeals agreed with petitioner that our cases in this area "did make an issue of the fee status of the land in question," id., at 1256, it nonetheless concluded that the status of the land as "fee land or tribal land is simply one of the factors a court should consider" when determining whether civil jurisdiction exists, id., at 1258 (citing 18 U. S. C. § 1151). Relying in part upon our decision in Merrion v. Jicarilla Apache Tribe, 455 U. S. 130 (1982), the court "complement[ed]" Montana `s framework with a "case-by-case approach" that balanced the non-Indian fee status of the land with "the nature of the inherent sovereign powers the tribe is attempting to exercise, its interests, and the impact that the exercise of the tribe's powers has upon the nonmember interests involved." 210 F. 3d, at 1255, 1257, 1261. The Court of Appeals then likened the Navajo hotel occupancy tax to similar taxes imposed by New Mexico and Arizona, concluding that the tax fell under Montana `s first exception because a "consensual relationship exists in that the nonmember guests could refrain from the privilege of lodging within the confines of the Navajo Reservation and therefore remain free from liability for the [tax]." 210 F. 3d, at 1263 (citing Buster v. Wright, 135 F. 947, 949 (CA8 1905)). The dissenting judge would have applied Montana without "any language or `factors' derived from Merrion " and concluded that, based upon her view of the record, none of the Montana exceptions applied. 210 F. 3d, at 1269 (Briscoe, J., dissenting).

We granted certiorari, 531 U. S. 1009 (2000), and now reverse.

Tribal jurisdiction is limited: For powers not expressly conferred upon them by federal statute or treaty, Indian tribes [650] must rely upon their retained or inherent sovereignty. In Montana, the most exhaustively reasoned of our modern cases addressing this latter authority, we observed that Indian tribe power over nonmembers on non-Indian fee land is sharply circumscribed. At issue in Montana was the Crow Tribe's attempt to regulate nonmember fishing and hunting on non-Indian fee land within the reservation. Although we "readily agree[d]" that the 1868 Fort Laramie Treaty authorized the Crow Tribe to prohibit nonmembers from hunting or fishing on tribal land, 450 U. S., at 557, we held that such "power cannot apply to lands held in fee by non-Indians." Id., at 559. This delineation of members and nonmembers, tribal land and non-Indian fee land, stemmed from the dependent nature of tribal sovereignty. Surveying our cases in this area dating back to 1810, see Fletcher v. Peck, 6 Cranch 87, 147 (1810) (Johnson, J., concurring) (stating that Indian tribes have lost any "right of governing every person within their limits except themselves"), we noted that "through their original incorporation into the United States as well as through specific treaties and statutes, Indian tribes have lost many of the attributes of sovereignty." 450 U. S., at 563.^[2] We concluded that the inherent sovereignty of Indian tribes was limited to "their members and their territory": "[E]xercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations [651] is inconsistent with the dependent status of the tribes." Id., at 564 (citing United States v. Wheeler, 435 U. S. 313, 326 (1978) ("[T]he dependent status of Indian tribes . . . is necessarily inconsistent with their freedom to determine their external relations" (emphasis deleted))).

Although we extracted from our precedents "the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe," 450 U. S., at 565, we nonetheless noted in Montana two possible bases for tribal jurisdiction over non-Indian fee land. First, "[a] tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealings, contracts, leases, or other arrangements." Ibid. Second, "[a] tribe may . . . exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Id., at 566. Applying these precepts, we found that the nonmembers at issue there had not subjected themselves to "tribal civil jurisdiction" through any agreements or dealings with the Tribe and that hunting and fishing on non-Indian fee land did not "imperil the subsistence or welfare of the Tribe." Ibid. We therefore held that the Crow Tribe's regulations could not be enforced.

The framework set forth in Montana "broadly addressed the concept of `inherent sovereignty.' " Strate v. A-1 Contractors, 520 U. S. 438, 453 (1997) (quoting Montana, supra, at 563). In Strate, we dealt with the Three Affiliated Tribes' assertion of judicial jurisdiction over an automobile accident involving two nonmembers traveling on a state highway within the reservation. Although we did not question the ability of tribal police to patrol the highway, see 520 U. S., at 456, n. 11, we likened the public right-of-way to non-Indian fee land because the Tribes lacked the power to [652] "assert a landowner's right to occupy and exclude," id., at 456. Recognizing that Montana "immediately involved regulatory authority,"<sup>[3]</sup> we nonetheless concluded that its reasoning had "delineated—in a main rule and exceptions—the bounds of the power tribes retain to exercise `forms of civil jurisdiction over non-Indians.' " 520 U. S., at 453 (quoting Montana, supra, at 565). We accordingly held that Montana governed tribal assertions of adjudicatory authority over non-Indian fee land within a reservation. See 520 U. S., at 453 ("Subject to controlling provisions in treaties and statutes, and the two exceptions identified in Montana, the civil authority of Indian tribes and their courts with respect to non-Indian fee lands generally `do[es] not extend to the activities of nonmembers of the tribe' " (emphasis added) (quoting Montana, supra, at 565)).

Citing our decision in Merrion, respondents submit that Montana and Strate do not restrict an Indian tribe's power to impose revenue-raising taxes.^[4] In Merrion, just one year after our decision in Montana, we upheld a severance tax imposed by the Jicarilla Apache Tribe upon non-Indian lessees authorized to extract oil and gas from tribal land. In so doing, we noted that the power to tax derives not solely from an Indian tribe's power to exclude non-Indians from tribal land, but also from an Indian tribe's "general authority, as sovereign, to control economic activity within its jurisdiction." 455 U. S., at 137. Such authority, we held, was incident to the benefits conferred upon nonmembers: "They benefit from the provision of police protection and other governmental services, as well as from ` "the advantages of a civilized society"` that are assured by the existence of tribal [653] government." Id., at 137-138 (quoting Exxon Corp. v. Department of Revenue of Wis., 447 U. S. 207, 228 (1980)).

Merrion, however, was careful to note that an Indian tribe's inherent power to tax only extended to "`transactions occurring on trust lands and significantly involving a tribe or its members.'" 455 U. S., at 137 (emphasis added) (quoting Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134, 152 (1980)). There are undoubtedly parts of the Merrion opinion that suggest a broader scope for tribal taxing authority than the quoted language above.^[5] But Merrion involved a tax that only applied to activity occurring on the reservation, and its holding is therefore easily reconcilable with the Montana-Strate line of authority, which we deem to be controlling. See Merrion, supra, at 142 ("[A] tribe has no authority over a nonmember until the nonmember enters tribal lands or conducts business with the tribe"). An Indian tribe's sovereign power to tax—whatever its derivation—reaches no further than tribal land.^[6]

[654] We therefore do not read Merrion to exempt taxation from Montana `s general rule that Indian tribes lack civil authority over nonmembers on non-Indian fee land. Accordingly, as in Strate, we apply Montana straight up. Because Congress has not authorized the Navajo Nation's hotel occupancy tax through treaty or statute, and because the incidence of the tax falls upon nonmembers on non-Indian fee land, it is incumbent upon the Navajo Nation to establish the existence of one of Montana `s exceptions.

Respondents argue that both petitioner and its hotel guests have entered into a consensual relationship with the Navajo Nation justifying the imposition of the hotel occupancy tax.^[7] Echoing the reasoning of the Court of Appeals, respondents note that the Cameron Trading Post benefits from the numerous services provided by the Navajo Nation. The record reflects that the Arizona State Police and the Navajo Tribal Police patrol the portions of United States [655] Highway 89 and Arizona Highway 64 traversing the reservation; that the Navajo Tribal Police and the Navajo Tribal Emergency Medical Services Department will respond to an emergency call from the Cameron Trading Post; and that local Arizona Fire Departments and the Navajo Tribal Fire Department provide fire protection to the area.^[8] Although we do not question the Navajo Nation's ability to charge an appropriate fee for a particular service actually rendered,^[9] we think the generalized availability of tribal services patently insufficient to sustain the Tribe's civil authority over nonmembers on non-Indian fee land.

The consensual relationship must stem from "commercial dealing, contracts, leases, or other arrangements," Montana, 450 U. S., at 565, and a nonmember's actual or potential receipt of tribal police, fire, and medical services does not create the requisite connection. If it did, the exception would swallow the rule: All non-Indian fee lands within a reservation benefit, to some extent, from the "advantages of a civilized society" offered by the Indian tribe. Merrion, supra, at 137-138 (internal quotation marks and citation omitted). Such a result does not square with our precedents; indeed, we implicitly rejected this argument in Strate,^[10] where we held that the nonmembers had not consented to the Tribes' adjudicatory authority by availing themselves of the benefit of tribal police protection while traveling within the reservation. See 520 U. S., at 456-457, and n. 11. We therefore reject respondents' broad reading of Montana `s first exception, which ignores the dependent status of Indian tribes and subverts the territorial restriction upon tribal power.

[656] Respondents and their principal amicus, the United States, also argue that petitioner consented to the tax by becoming an "Indian trader." Congress has authorized the Commissioner of Indian Affairs "to appoint traders to the Indian tribes and to make such rules and regulations as he may deem just and proper specifying the kind and quantity of goods and the prices at which such goods shall be sold to the Indians." 25 U. S. C. § 261. Petitioner has acquired the requisite license to transact business with the Navajo Nation and therefore is subject to the regulatory strictures promulgated by the Indian Affairs Commissioner. See 25 CFR pt. 141 (2000).^[11] But whether or not the Navajo Nation could impose a tax on activities arising out of this relationship, an issue not before us, it is clear that petitioner's "Indian trader" status by itself cannot support the imposition of the hotel occupancy tax.

Montana`s consensual relationship exception requires that the tax or regulation imposed by the Indian tribe have a nexus to the consensual relationship itself. In Strate, for example, even though respondent A-1 Contractors was on the reservation to perform landscaping work for the Three Affiliated Tribes at the time of the accident, we nonetheless held that the Tribes lacked adjudicatory authority because the other nonmember "was not a party to the subcontract, and the [T]ribes were strangers to the accident." 520 U. S., at 457 (internal quotation marks and citation omitted). A nonmember's consensual relationship in one area thus does not trigger tribal civil authority in another—it is not "in for a penny, in for a Pound." E. Ravenscroft, The Canterbury Guests; Or A Bargain Broken, act v, sc. 1. The hotel occupancy tax at issue here is grounded in petitioner's relationship with its nonmember hotel guests, who can reach the Cameron Trading Post on United States Highway 89 and [657] Arizona Highway 64, non-Indian public rights-of-way. Petitioner cannot be said to have consented to such a tax by virtue of its status as an "Indian trader."

Although the Court of Appeals did not reach Montana `s second exception, both respondents and the United States argue that the hotel occupancy tax is warranted in light of the direct effects the Cameron Trading Post has upon the Navajo Nation. Again noting the Navajo Nation's provision of tribal services and petitioner's status as an "Indian trader," respondents emphasize that petitioner employs almost 100 Navajo Indians; that the Cameron Trading Post derives business from tourists visiting the reservation; and that large amounts of tribal land surround petitioner's isolated property.^[12] Although we have no cause to doubt respondents' assertion that the Cameron Chapter of the Navajo Nation possesses an "overwhelming Indian character," Brief for Respondents 13-14, we fail to see how petitioner's operation of a hotel on non-Indian fee land "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Montana, supra, at 566.^[13]

[658] We find unpersuasive respondents' attempt to augment this claim by reference to Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 440 (1989) (opinion of Stevens, J.). In this portion of Brendale, per the reasoning of two Justices, we held that the Yakima Nation had the authority to zone a small, non-Indian parcel located "in the heart" of over 800,000 acres of closed and largely uninhabited tribal land. Ibid. Respondents extrapolate from this holding that Indian tribes enjoy broad authority over nonmembers wherever the acreage of non-Indian fee land is minuscule in relation to the surrounding tribal land. But we think it plain that the judgment in Brendale turned on both the closed nature of the non-Indian fee land^[14] and the fact that its development would place the entire area "in jeopardy." Id., at 443 (internal quotation marks and citation omitted).^[15] Irrespective of the percentage of non-Indian fee land within a reservation, Montana `s second exception grants Indian tribes nothing "`beyond what is necessary to [659] protect tribal self-government or to control internal relations.' " Strate, 520 U. S., at 459 (quoting Montana, 450 U. S., at 564). Whatever effect petitioner's operation of the Cameron Trading Post might have upon surrounding Navajo land, it does not endanger the Navajo Nation's political integrity. See Brendale, supra, at 431 (opinion of White, J.) (holding that the impact of the nonmember's conduct "must be demonstrably serious and must imperil the political integrity, the economic security, or the health and welfare of the tribe").

Indian tribes are "unique aggregations possessing attributes of sovereignty over both their members and their territory," but their dependent status generally precludes extension of tribal civil authority beyond these limits. United States v. Mazurie, 419 U. S. 544, 557 (1975). The Navajo Nation's imposition of a tax upon nonmembers on non-Indian fee land within the reservation is, therefore, presumptively invalid. Because respondents have failed to establish that the hotel occupancy tax is commensurately related to any consensual relationship with petitioner or is necessary to vindicate the Navajo Nation's political integrity, the presumption ripens into a holding. The judgment of the Court of Appeals for the Tenth Circuit is accordingly

Reversed.

Justice Souter, with whom Justice Kennedy and Justice Thomas join, concurring.

If we are to see coherence in the various manifestations of the general law of tribal jurisdiction over non-Indians, the source of doctrine must be Montana v. United States, 450 U. S. 544 (1981), and it is in light of that case that I join the Court's opinion. Under Montana, the status of territory within a reservation's boundaries as tribal or fee land may have much to do (as it does here) with the likelihood (or not) that facts will exist that are relevant under the exceptions to Montana `s "general proposition" that "the inherent sovereign [660] powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." Id., at 565. That general proposition is, however, the first principle, regardless of whether the land at issue is fee land, or land owned by or held in trust for an Indian tribe.

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[1] Briefs of amici curiae urging reversal were filed for the State of South Dakota et al. by Mark W. Barnett, Attorney General of South Dakota, and John Patrick Guhin, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Ken Salazar of Colorado, Robert A. Butterworth of Florida, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Wayne Stenehjem of North Dakota, W. A. Drew Edmondson of Oklahoma, and Jan Graham of Utah; for the Association of American Railroads by Lynn H. Slade, Walter E. Stern, and William C. Scott; for the Interstate Natural Gas Association of America by Michael E. Webster and Neil G. Westesen; for Proper Economic Resource Management, Inc., by Randy V. Thompson; and for Roberta Bugenig et al. by James S. Burling.

Briefs of amici curiae urging affirmance were filed for the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation et al. by William R. Perry and Arthur Lazarus, Jr.; for the Colorado River Indian Tribes et al. by Susan M. Williams; for the Confederated Tribes of the Umatilla Indian Reservation et al. by Michael L. Roy and Jeffrey D. Lerner; and for the Shakopee Mdewakanton Sioux (Dakota) Community et al. by Andrew M. Small and Steven F. Olson.

[2] We also noted that nearly 90 million acres of non-Indian fee land had been acquired as part of the Indian General Allotment Act, 24 Stat. 388, as amended, 25 U. S. C. § 331 et seq., which authorized the issuance of patents in fee to individual Indian allottees who, after holding the patent for 25 years, could then transfer the land to non-Indians. Although Congress repudiated the practice of allotment in the Indian Reorganization Act, 48 Stat. 984, 25 U. S. C. § 461 et seq., we nonetheless found significant that Congress equated alienation "with the dissolution of tribal affairs and jurisdiction." Montana, 450 U. S., at 559, n. 9. We thus concluded that it "defie[d] common sense to suppose that Congress would intend that non-Indians purchasing allotted lands would become subject to tribal jurisdiction." Ibid.

[3] See also South Dakota v. Bourland, 508 U. S. 679 (1993); Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408 (1989).

[4] Respondents concede that regulatory taxes fall under the Montana framework. See 450 U. S., at 565 ("A tribe may regulate, through taxation, . . . the activities of nonmembers").

[5] Merrion v. Jicarilla Apache Tribe, 455 U. S. 130 (1982), for example, referenced the decision of the Court of Appeals for the Eighth Circuit in Buster v. Wright, 135 F. 947 (1905). But we have never endorsed Buster `s statement that an Indian tribe's "jurisdiction to govern the inhabitants of a country is not conditioned or limited by the title to the land which they occupy in it." Id., at 951. Accordingly, beyond any guidance it might provide as to the type of consensual relationship contemplated by the first exception of Montana v. United States, 450 U. S. 544, 566 (1981), Buster is not an authoritative precedent.

[6] We find misplaced the Court of Appeals' reliance upon 18 U. S. C. § 1151, a statute conferring upon Indian tribes jurisdiction over certain criminal acts occurring in "Indian country," or "all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation." See also Duro v. Reina, 495 U. S. 676, 680, n. 1 (1990). Although § 1151 has been relied upon to demarcate state, federal, and tribal jurisdiction over criminal and civil matters, see DeCoteau v. District County Court for Tenth Judicial Dist.,420 U. S. 425, 427, n. 2 (1975) ("While § 1151 is concerned, on its face, only with criminal jurisdiction, the Court has recognized that it generally applies as well to questions of civil jurisdiction [citing cases]"), we do not here deal with a claim of statutorily conferred power. Section 1151 simply does not address an Indian tribe's inherent or retained sovereignty over nonmembers on non-Indian fee land.

At least in the context of non-Indian fee land, we also find inapt the Court of Appeals' analogy to state taxing authority. Our reference in Merrion to a State's ability to tax activities with which it has a substantial nexus was made in the context of describing an Indian tribe's authority over tribal land. See 455 U. S., at 137-138 (citing Exxon Corp. v. Department of Revenue of Wis., 447 U. S. 207, 228 (1980); Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434, 445 (1979)). Only full territorial sovereigns enjoy the "power to enforce laws against all who come within the sovereign's territory, whether citizens or aliens," and Indian tribes "can no longer be described as sovereigns in this sense." Duro v. Reina, supra, at 685.

[7] Because the legal incidence of the tax falls directly upon the guests, not petitioner, it is unclear whether the Tribe's relationship with petitioner is at all relevant. We need not, however, decide this issue since the hotel occupancy tax exceeds the Tribe's authority even considering petitioner's contacts with the Navajo Nation.

[8] The Navajo Tribal Fire Department has responded to a fire at the Cameron Trading Post. See App. to Pet. for Cert. 57a.

[9] The Navajo Nation charges for its emergency medical services (a flat call-out fee of $300 and a mileage fee of $6.25 per mile).See App. 127-129.

[10] See Reply Brief for Petitioners13-14 and Brief for United States as Amicus Curiae 29 in Strate v. A-1 Contractors, O. T. 1996, No. 95-1872.

[11] Although the regulations do not "preclude" the Navajo Nation from imposing upon "Indian traders" such "fees or taxes [it] may deem appropriate,"the regulations do not contemplate or authorize the hotel occupancy tax at issue here. 25 CFR § 141.11 (2000).

[12] The record does not reflect the amount of non-Indian fee land within the Navajo Nation. A 1995 study commissioned by the United States Department of Commerce states that 96.3 percent of the Navajo Nation's 16,224,896 acres is tribally owned, with allotted land comprising 762,749 acres, or 4.7 percent, of the reservation. See Economic Development Administration, V. Tiller, American Indian Reservations and Indian Trust Areas 214 (1995). The 1990 Census reports that that 96.6 percent of residents on the Navajo Nation are Indian. Joint Lodging 182. The Cameron Chapter of the Navajo Nation, in which petitioner's land lies, has a non-Indian population of 2.3 percent. See id., at 181.

[13] Although language in Merrion referred to taxation as "necessary to tribal self-government and territorial management," 455 U. S., at 141, it did not address assertions of tribal jurisdiction over non-Indian fee land. Just as with Montana `s first exception, incorporating Merrion `s reasoning here would be tantamount to rejecting Montana `s general rule. In Strate v. A-1 Contractors, 520 U. S. 438, 459 (1997), we stated that Montana `s second exception "can be misperceived." The exception is only triggered by nonmember conduct that threatens the Indian tribe; it does not broadly permit the exercise of civil authority wherever it might be considered "necessary" to self-government. Thus, unless the drain of the nonmember's conduct upon tribal services and resources is so severe that itactually "imperil[s]" the political integrity of the Indian tribe, there can be no assertion of civil authority beyond tribal lands. Montana, 450 U. S., at 566. Petitioner's hotel has no such adverse effect upon the Navajo Nation.

[14] Justice Stevens' opinion in Brendale sets out in some detail the restrictive nature of "closed area" surrounding the non-Indian fee land. See 492 U. S., at 438-441. Pursuant to the powers reserved it in an 1855 treaty with the United States, the Yakima Nation closed this forested area to the public and severely limited the activities of those who entered the land through a "courtesy permit system." Id., at 439 (internal quotation marks and citation omitted). The record here establishes that, save a few natural areas and parks not at issue, the Navajo Reservation is open to the general public. App. 61.

[15] See Strate v. A-1 Contractors, supra, at 447, n. 6 (noting that the Yakima Nation "retained zoning authority . . . only in the closed area"); Duro v. Reina, 495 U. S., at 688 (noting that zoning "is vital to the maintenance of tribal integrity and self-determination").

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[355] Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Souter, J., filed a concurring opinion, in which Kennedy and Thomas, JJ., joined, post, p. 375. Ginsburg, J., filed a concurring opinion, post, p. 386. O'Connor, J.,filed an opinion concurring in part and concurring in the judgment, in which Stevens and Breyer, JJ., joined, post, p. 387. Stevens, J., filed an opinion concurring in the judgment, in which Breyer, J., joined, post, p. 401.

C. Wayne Howle, Senior Deputy Attorney General of Nevada, argued the cause for petitioners. With him on the briefs were Frankie Sue Del Papa, Attorney General, Paul G. Taggart, Deputy Attorney General, and Jeffrey S. Sutton.

S. James Anaya argued the cause for respondents and filed a brief for respondent Hicks. Kim Jerome Gottschalk [355] and Melody McCoy filed a brief for respondents Tribal Court in and for the Fallon Paiute-Shoshone Tribes et al.

Barbara McDowell argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were former Solicitor General Waxman, Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, David C. Shilton, and William B. Lazarus.^[1]

Justice Scalia, delivered the opinion of the Court.

This case presents the question whether a tribal court may assert jurisdiction over civil claims against state officials who entered tribal land to execute a search warrant against a tribe member suspected of having violated state law outside the reservation.

I

Respondent Hicks^[2] is one of about 900 members of the Fallon Paiute-Shoshone Tribes of western Nevada. He resides [356] on the Tribes' reservation of approximately 8,000 acres, established by federal statute in 1908, ch. 53, 35 Stat. 85. In 1990 Hicks came under suspicion of having killed, off the reservation, a California bighorn sheep, a gross misdemeanor under Nevada law, see Nev. Rev. Stat. § 501.376 (1999). A state game warden obtained from state court a search warrant "SUBJECT TO OBTAINING APPROVAL FROM THE FALLON TRIBAL COURT IN AND FOR THE FALLON PAIUTE-SHOSHONE TRIBES." According to the issuing judge, this tribal-court authorization was necessary because "[t]his Court has no jurisdiction on the Fallon Paiute-Shoshone Indian Reservation." App. G to Pet. for Cert. 1. A search warrant was obtained from the tribal court, and the warden, accompanied by a tribal police officer, searched respondent's yard, uncovering only the head of a Rocky Mountain bighorn, a different (and unprotected) species of sheep.

Approximately one year later, a tribal police officer reported to the warden that he had observed two mounted bighorn sheep heads in respondent's home. The warden again obtained a search warrant from state court; though this warrant did not explicitly require permission from the Tribes, see App. F to Pet. for Cert. 2, a tribal-court warrant was nonetheless secured, and respondent's home was again (unsuccessfully) searched by three wardens and additional tribal officers.

Respondent, claiming that his sheep heads had been damaged, and that the second search exceeded the bounds of the warrant, brought suit against the Tribal Judge, the tribal officers, the state wardens in their individual and official capacities, and the State of Nevada in the Tribal Court in and for the Fallon Paiute-Shoshone Tribes. (His claims against all defendants except the state wardens and the State of Nevada were dismissed by directed verdict and are not at issue here.) Respondent's causes of action included trespass to land and chattels, abuse of process, and violation of civil [357] rights—specifically, denial of equal protection, denial of due process, and unreasonable search and seizure, each remediable under Rev. Stat. § 1979, 42 U. S. C. § 1983. See App. 8-21, 25-29. Respondent later voluntarily dismissed his case against the State and against the state officials in their official capacities, leaving only his suit against those officials in their individual capacities. See id., at 32-35.

The Tribal Court held that it had jurisdiction over the claims, a holding affirmed by the Tribal Appeals Court. The state officials and Nevada then filed an action in Federal District Court seeking a declaratory judgment that the Tribal Court lacked jurisdiction. The District Court granted summary judgment to respondent on the issue of jurisdiction, and also held that the state officials would have to exhaust any claims of qualified immunity in the tribal court. The Ninth Circuit affirmed, concluding that the fact that respondent's home is located on tribe-owned land within the reservation is sufficient to support tribal jurisdiction over civil claims against nonmembers arising from their activities on that land. 196 F. 3d 1020 (1999). We granted certiorari, 531 U. S. 923 (2000).

II

In this case, which involves claims brought under both tribal and federal law, it is necessary to determine, as to the former, whether the Tribal Court in and for the Fallon Paiute-Shoshone Tribes has jurisdiction to adjudicate the alleged tortious conduct of state wardens executing a search warrant for evidence of an off-reservation crime; and, as to the latter, whether the Tribal Court has jurisdiction over claims brought under 42 U. S. C. § 1983. We address the former question first.

A

The principle of Indian law central to this aspect of the case is our holding in Strate v. A-1 Contractors, 520 U. S. 438, 453 (1997): "As to nonmembers . . . a tribe's adjudicative [358] jurisdiction does not exceed its legislative jurisdiction . . . ." That formulation leaves open the question whether a tribe's adjudicative jurisdiction over nonmember defendants equals its legislative jurisdiction.^[3] We will not have to answer that open question if we determine that the Tribes in any event lack legislative jurisdiction in this case. We first inquire, therefore, whether the Fallon Paiute-Shoshone Tribes— either as an exercise of their inherent sovereignty, or under grant of federal authority—can regulate state wardens executing a search warrant for evidence of an off-reservation crime.

Indian tribes' regulatory authority over nonmembers is governed by the principles set forth in Montana v. United States, 450 U. S. 544 (1981), which we have called the "pathmarking case" on the subject, Strate, supra, at 445. In deciding whether the Crow Tribe could regulate hunting and fishing by nonmembers on land held in fee simple by nonmembers, Montana observed that, under our decision in Oliphant v. Suquamish Tribe, 435 U. S. 191 (1978), tribes lack criminal jurisdiction over nonmembers. Although, it continued, "Oliphant only determined inherent tribal authority in criminal matters, the principles on which it relied support the general proposition that the inherent sovereign [359] powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." 450 U. S., at 565 (footnote omitted). Where nonmembers are concerned, the "exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation." Id., at 564 (emphasis added).^[4]

Both Montana and Strate rejected tribal authority to regulate nonmembers' activities on land over which the tribe could not "assert a landowner's right to occupy and exclude," Strate, supra, at 456; Montana, supra, at 557, 564. Respondents and the United States argue that since Hicks's home and yard are on tribe-owned land within the reservation, the Tribe may make its exercise of regulatory authority over nonmembers a condition of nonmembers' entry. Not necessarily. While it is certainly true that the non-Indian ownership status of the land was central to the analysis in both Montana and Strate, the reason that was so was not that Indian ownership suspends the "general proposition" derived from Oliphant that "the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe" except to the extent "necessary to protect tribal self-government or to control internal relations." 450 U. S., at 564-565. Oliphant itself drew no distinctions based on the status of land. And Montana, after announcing the general rule of no jurisdiction over nonmembers, [360] cautioned that "[t]o be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands," 450 U. S., at 565—clearly implying that the general rule of Montana applies to both Indian and non-Indian land. The ownership status of land, in other words, is only one factor to consider in determining whether regulation of the activities of nonmembers is "necessary to protect tribal self-government or to control internal relations." It may sometimes be a dispositive factor. Hitherto, the absence of tribal ownership has been virtually conclusive of the absence of tribal civil jurisdiction; with one minor exception, we have never upheld under Montana the extension of tribal civil authority over nonmembers on non-Indian land. Compare, e. g., Merrion v. Jicarilla Apache Tribe, 455 U. S. 130, 137, 142 (1982) (tribe has taxing authority over tribal lands leased by nonmembers), with Atkinson Trading Co. v. Shirley, 532 U. S. 645, 659 (2001) (tribe has no taxing authority over nonmembers' activities on land held by nonmembers in fee); but see Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 443-444, 458-459 (1989) (opinions of Stevens, J., and Blackmun, J.) (tribe can impose zoning regulation on that 3.1% of land within reservation area closed to public entry that was not owned by the tribe). But the existence of tribal ownership is not alone enough to support regulatory jurisdiction over nonmembers.

We proceed to consider, successively, the following questions: whether regulatory jurisdiction over state officers in the present context is "necessary to protect tribal selfgovernment or to control internal relations," and, if not, whether such regulatory jurisdiction has been congressionally conferred.

B

In Strate, we explained that what is necessary to protect tribal self-government and control internal relations can be understood by looking at the examples of tribal power to [361] which Montana referred: tribes have authority "[to punish tribal offenders,] to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members," 520 U. S., at 459 (brackets in original), quoting Montana, supra, at 564. These examples show, we said, that Indians have "`the right . . . to make their own laws and be ruled by them,' " 520 U. S., at 459, quoting Williams v. Lee, 358 U. S. 217, 220 (1959). See also Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U. S. 382, 386 (1976) (per curiam) ("In litigation between Indians and non-Indians arising out of conduct on an Indian reservation, resolution of conflicts between the jurisdiction of state and tribal courts has depended, absent a governing Act of Congress, on whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them" (internal quotation marks and citation omitted)). Tribal assertion of regulatory authority over nonmembers must be connected to that right of the Indians to make their own laws and be governed by them. See Merrion, supra, at 137, 142 ("The power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument of self-government," at least as to "tribal lands" on which the tribe "has . . . authority over a nonmember").

Our cases make clear that the Indians' right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation. State sovereignty does not end at a reservation's border. Though tribes are often referred to as "sovereign" entities, it was "long ago" that "the Court departed from Chief Justice Marshall's view that `the laws of [a State] can have no force' within reservation boundaries. Worcester v. Georgia, 6 Pet. 515, 561 (1832)," White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 141 (1980).^[5] "Ordinarily," it is now clear, "an Indian [362] reservation is considered part of the territory of the State." U. S. Dept. of Interior, Federal Indian Law 510, and n. 1 (1958), citing Utah & Northern R. Co. v. Fisher, 116 U. S. 28 (1885); see also Organized Village of Kake v. Egan, 369 U. S. 60, 72 (1962).

That is not to say that States may exert the same degree of regulatory authority within a reservation as they do without. To the contrary, the principle that Indians have the right to make their own laws and be governed by them requires "an accommodation between the interests of the Tribes and the Federal Government, on the one hand, and those of the State, on the other." Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134, 156 (1980); see also id., at 181 (opinion of Rehnquist, J.). "When onreservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State's regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest." Bracker, supra, at 144. When, however, state interests outside the reservation are implicated, States may regulate the activities even of tribe members on tribal land, as exemplified by our decision in Confederated Tribes. In that case, Indians were selling cigarettes on their reservation to nonmembers from off reservation, without collecting the state cigarette tax. We held that the State could require the Tribes to collect the tax from nonmembers, and could "impose at least `minimal' burdens on the Indian retailer to aid in enforcing and collecting the tax," 447 U. S., at 151. It is also well established in our precedent that States have criminal jurisdiction over reservation Indians for crimes committed (as was the alleged poaching in this case) off the reservation. See Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148— 149 (1973).

[363] While it is not entirely clear from our precedent whether the last mentioned authority entails the corollary right to enter a reservation (including Indian-fee lands) for enforcement purposes, several of our opinions point in that direction. In Confederated Tribes, we explicitly reserved the question whether state officials could seize cigarettes held for sale to nonmembers in order to recover the taxes due. See 447 U. S., at 162. In Utah & Northern R. Co., however, we observed that "[i]t has . . . been held that process of [state] courts may run into an Indian reservation of this kind, where the subject-matter or controversy is otherwise within their cognizance," 116 U. S., at 31.^[6] Shortly thereafter, we considered, in United States v. Kagama, 118 U. S. 375 (1886), whether Congress could enact a law giving federal courts jurisdiction over various common-law, violent crimes committed by Indians on a reservation within a State. We expressed skepticism that the Indian Commerce Clause could justify this assertion of authority in derogation of state jurisdiction, but ultimately accepted the argument that the law

"does not interfere with the process of the State courts within the reservation, nor with the operation of State laws upon white people found there. Its effect is confined to the acts of an Indian of some tribe, of a criminal character, committed within the limits of the reservation.

"It seems to us that this is within the competency of Congress." Id., at 383.

The Court's references to "process" in Utah & Northern R. Co. and Kagama, and the Court's concern in Kagama over possible federal encroachment on state prerogatives, suggest [364] state authority to issue search warrants in cases such as the one before us. ("Process" is defined as "any means used by a court to acquire or exercise its jurisdiction over a person or over specific property," Black's Law Dictionary 1084 (5th ed. 1979), and is equated in criminal cases with a warrant, id., at 1085.) It is noteworthy that Kagama recognized the right of state laws to "operat[e] . . . upon [nonIndians] found" within a reservation, but did not similarly limit to non-Indians or the property of non-Indians the scope of the process of state courts. This makes perfect sense, since, as we explained in the context of federal enclaves, the reservation of state authority to serve process is necessary to "prevent [such areas] from becoming an asylum for fugitives from justice." Fort Leavenworth R. Co. v. Lowe, 114 U. S. 525, 533 (1885).^[7]

We conclude today, in accordance with these prior statements, that tribal authority to regulate state officers in executing process related to the violation, off reservation, of state laws is not essential to tribal self-government or internal relations—to "the right to make laws and be ruled by them." The State's interest in execution of process is considerable, and even when it relates to Indian-fee lands it no more impairs the tribe's self-government than federal enforcement of federal law impairs state government. Respondents argue that, even conceding the State's general interest in enforcing its off-reservation poaching law on the reservation, Nevada's interest in this suit is minimal, because it is a suit against state officials in their individual [365] capacities. We think, however, that the distinction between individual and official capacity suits is irrelevant. To paraphrase our opinion in Tennessee v. Davis, 100 U. S. 257, 263 (1880), which upheld a federal statute permitting federal officers to remove to federal court state criminal proceedings brought against them for their official actions, a State "can act only through its officers and agents," and if a tribe can "affix penalties to acts done under the immediate direction of the [state] government, and in obedience to its laws," "the operations of the [state] government may at any time be arrested at the will of the [tribe]." Cf. Anderson v. Creighton, 483 U. S. 635, 638 (1987) ("[P]ermitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties").

C

The States' inherent jurisdiction on reservations can of course be stripped by Congress, see Draper v. United States, 164 U. S. 240, 242-243 (1896). But with regard to the jurisdiction at issue here that has not occurred. The Government's assertion that "[a]s a general matter, although state officials have jurisdiction to investigate and prosecute crimes on a reservation that exclusively involve non-Indians, . . . they do not have jurisdiction with respect to crimes involving Indian perpetrators or Indian victims," Brief for United States as Amicus Curiae 12-13, n. 7, is misleading. The statutes upon which it relies, see id., at 18-19, show that the last half of the statement, like the first, is limited to "crimes on a reservation. " Sections 1152 and 1153 of Title 18, which give United States and tribal criminal law generally exclusive application, apply only to crimes committed in Indian country; Public Law 280, codified at 18 U. S. C. § 1162, which permits some state jurisdiction as an exception to this rule, is similarly limited. And 25 U. S. C. [366] § 2804, which permits federal-state agreements enabling state law enforcement agents to act on reservations, applies only to deputizing them for the enforcement of federal or tribal criminal law. Nothing in the federal statutory scheme prescribes, or even remotely suggests, that state officers cannot enter a reservation (including Indian-fee land) to investigate or prosecute violations of state law occurring off the reservation. To the contrary, 25 U. S. C. § 2806 affirms that "the provisions of this chapter alter neither . . . the law enforcement, investigative, or judicial authority of any . . . State, or political subdivision or agency thereof . . . ."

III

We turn next to the contention of respondent and the Government that the tribal court, as a court of general jurisdiction, has authority to entertain federal claims under § 1983.^[8] It is certainly true that state courts of "general jurisdiction" can adjudicate cases invoking federal statutes, such as § 1983, absent congressional specification to the contrary. "Under [our] system of dual sovereignty, we have consistently held that state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States," Tafflin v. Levitt, 493 U. S. 455, 458 (1990). That this would be the case was assumed by the Framers, see The Federalist No. 82, pp. 492-493 (C. Rossiter ed. 1961). Indeed, that state courts could enforce federal law is presumed by Article III of the [367] Constitution, which leaves to Congress the decision whether to create lower federal courts at all. This historical and constitutional assumption of concurrent state-court jurisdiction over federal-law cases is completely missing with respect to tribal courts.

Respondents' contention that tribal courts are courts of "general jurisdiction" is also quite wrong. A state court's jurisdiction is general, in that it "lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe." Id., at 493. Tribal courts, it should be clear, cannot be courts of general jurisdiction in this sense, for a tribe's inherent adjudicative jurisdiction over nonmembers is at most only as broad as its legislative jurisdiction. See supra, at 357-359.^[9] It is true that some statutes proclaim tribal-court jurisdiction over certain questions of federal law. See, e. g., 25 U. S. C. § 1911(a) (authority to adjudicate child custody disputes under the Indian Child Welfare Act of 1978); 12 U. S. C. § 1715z—13(g)(5) (jurisdiction over mortgage foreclosure actions brought by the Secretary of Housing and Urban Development against reservation [368] homeowners). But no provision in federal law provides for tribal-court jurisdiction over § 1983 actions.

Furthermore, tribal-court jurisdiction would create serious anomalies, as the Government recognizes, because the general federal-question removal statute refers only to removal from state court, see 28 U. S. C. § 1441. Were § 1983 claims cognizable in tribal court, defendants would inexplicably lack the right available to state-court § 1983 defendants to seek a federal forum. The Government thinks the omission of reference to tribal courts in § 1441 unproblematic. Since, it argues, "[i]t is doubtful . . . that Congress intended to deny tribal court defendants the right given state court defendants to elect a federal forum for the adjudication of causes of action under federal law," we should feel free to create that right by permitting the tribalcourt defendant to obtain a federal-court injunction against the action, effectively forcing it to be refiled in federal court. Brief for United States as Amicus Curiae 25-26. The sole support for devising this extraordinary remedy is El Paso Natural Gas Co. v. Neztsosie, 526 U. S. 473 (1999), where we approved a similar procedure with regard to claims under the Price-Anderson Act brought in tribal court. In Neztsosie, however, the claims were not initially federal claims, but Navajo tort claims that the Price-Anderson Act provided "shall be deemed to be . . . action[s] arising under" 42 U. S. C. § 2210; there was little doubt that the tribal court had jurisdiction over such tort claims, see 526 U. S., at 482, n. 4. And for the propriety of the injunction in Neztsosie, we relied not on § 1441, but on the removal provision of the Price-Anderson Act, 42 U. S. C. § 2210(n)(2). Although, like § 1441, that provision referred only to removal from state courts, in light of the Act's detailed and distinctive provisions for the handling of "nuclear incident" cases in federal court, see 526 U. S., at 486, we thought it clear Congress envisioned the defendant's ability to get into federal court in all instances. [369] Not only are there missing here any distinctive federal-court procedures, but in order even to confront the question whether an unspecified removal power exists, we must first attribute to tribal courts jurisdiction that is not apparent. Surely the simpler way to avoid the removal problem is to conclude (as other indications suggest anyway) that tribal courts cannot entertain § 1983 suits.

IV

The last question before us is whether petitioners were required to exhaust their jurisdictional claims in Tribal Court before bringing them in Federal District Court. See National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845, 856-857 (1985). In National Farmers Union we recognized exceptions to the exhaustion requirement, where "an assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith, . . . or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court's jurisdiction," id., at 856, n. 21 (internal quotation marks omitted). None of these exceptions seems applicable to this case, but we added a broader exception in Strate: "[w]hen . . . it is plain that no federal grant provides for tribal governance of nonmembers' conduct on land covered by Montana `s main rule," so the exhaustion requirement "would serve no purpose other than delay." 520 U. S., at 459-460, and n. 14. Though this exception too is technically inapplicable, the reasoning behind it is not. Since it is clear, as we have discussed, that tribal courts lack jurisdiction over state officials for causes of action relating to their performance of official duties, adherence to the tribal exhaustion requirement in such cases "would serve no purpose other than delay," and is therefore unnecessary.

[370] V

Finally, a few words in response to the concurrence of Justice O'Connor, which is in large part a dissent from the views expressed in this opinion.^[10]

The principal point of the concurrence is that our reasoning "gives only passing consideration to the fact that the state officials' activities in this case occurred on land owned and controlled by the Tribes," post, at 392. According to Justice O'Connor, "that factor is not prominent in the Court's analysis," post, at 395. Even a cursory reading of our opinion demonstrates that this is not so. To the contrary, we acknowledge that tribal ownership is a factor in the Montana analysis, and a factor significant enough that it "may sometimes be . . . dispositive," supra, at 360. We simply do not find it dispositive in the present case, when weighed against the State's interest in pursuing offreservation violations of its laws. See supra, at 364 (concluding that "[t]he State's interest in execution of process is considerable" enough to outweigh the tribal interest in selfgovernment "even when it relates to Indian-fee lands"). The concurrence is of course free to disagree with this judgment; but to say that failure to give tribal ownership determinative [371] effect "fails to consider adequately the Tribe's inherent sovereign interests in activities on their land," post, at 401 (opinion of O'Connor, J.), is an exaggeration.

The concurrence marshals no authority and scant reasoning to support its judgment that tribal authority over state officers pursuing, on tribe-owned land, off-reservation violations of state law may be "necessary to protect tribal selfgovernment or to control internal relations." Montana, 450 U. S., at 564-565. Self -government and internal relations are not directly at issue here, since the issue is whether the Tribes' law will apply, not to their own members, but to a narrow category of outsiders. And the concurrence does not try to explain how allowing state officers to pursue off-reservation violation of state law "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe," id., at 566. That the actions of these state officers cannot threaten or affect those interests is guaranteed by the limitations of federal constitutional and statutory law to which the officers are fully subject.

The concurrence exaggerates and distorts the consequences of our conclusion, supra, at 359, n. 3, that the term "other arrangements" in a passage from Montana referred to other "private consensual" arrangements—so that it did not include the state officials' obtaining of tribal warrants in the present case. That conclusion is correct, as a fuller exposition of the passage from Montana makes clear:

"To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements." 450 U. S., at 565. [372] The Court (this is an opinion, bear in mind, not a statute) obviously did not have in mind States or state officers acting in their governmental capacity; it was referring to private individuals who voluntarily submitted themselves to tribal regulatory jurisdiction by the arrangements that they (or their employers) entered into. This is confirmed by the fact that all four of the cases in the immediately following citation involved private commercial actors. See Confederated Tribes, 447 U. S., at 152 (nonmember purchasers of cigarettes from tribal outlet); Williams v. Lee, 358 U. S., at 217 (general store on the Navajo reservation); Morris v. Hitchcock, 194 U. S. 384 (1904) (ranchers grazing livestock and horses on Indian lands "under contracts with individual members of said tribes"); Buster v. Wright, 135 F. 947, 950 (CA8 1905) (challenge to the "permit tax" charged by a tribe to nonmembers for "the privilege . . . of trading within the borders").

The concurrence concludes from this brief footnote discussion that we would invalidate express or implied cessions of regulatory authority over nonmembers contained in statetribal cooperative agreements, including those pertaining to mutual law enforcement assistance, tax administration assistance, and child support and paternity matters. See post, at 393-394. This is a great overreaching. The footnote does not assert that "a consensual relationship [between a tribe and a State] could never exist," post, at 394 (opinion of O'Connor, J.). It merely asserts that "other arrangements" in the passage from Montana does not include state officers' obtaining of an (unnecessary) tribal warrant. Whether contractual relations between State and tribe can expressly or impliedly confer tribal regulatory jurisdiction over nonmembers—and whether such conferral can be effective to confer adjudicative jurisdiction as well—are questions that may arise in another case, but are not at issue here.

Another exaggeration is the concurrence's contention that we "give nonmembers freedom to act with impunity on tribal [373] land based solely on their status as state law enforcement officials," post, at 401 (opinion of O'Connor, J.). We do not say state officers cannot be regulated; we say they cannot be regulated in the performance of their law enforcement duties. Action unrelated to that is potentially subject to tribal control depending on the outcome of Montana analysis. Moreover, even where the issue is whether the officer has acted unlawfully in the performance of his duties, the tribe and tribe members are of course able to invoke the authority of the Federal Government and federal courts (or the state government and state courts) to vindicate constitutional or other federal- and state-law rights.

We must comment upon the final paragraphs of Part II of the concurrence's opinion—which bring on stage, in classic fashion, a deus ex machina to extract, from the seemingly insoluble difficulties that the prior writing has created, a happy ending. The concurrence manages to have its cake and eat it too—to hand over state law enforcement officers to the jurisdiction of tribal courts and yet still assure that the officers' traditional immunity (and hence the State's law enforcement interest) will be protected—by simply announcing "that in order to protect government officials, immunity claims should be considered in reviewing tribal court jurisdiction." Post, at 401 (opinion of O'Connor, J.). What wonderful magic. Without so much as a citation (none is available) the concurrence declares the qualified immunity inquiry to be part of the jurisdictional inquiry, thus bringing it within the ken of the federal court at the outset of the case. There are two problems with this declaration. The first is that it is not true. There is no authority whatever for the proposition that absolute- and qualified-immunity defenses pertain to the court's jurisdiction—much less to the tribe's regulatory jurisdiction, which is what is at issue here. (If they did pertain to the court's jurisdiction, they would presumably be nonwaivable. Cf. Idaho v. Coeur d'Alene Tribe of Idaho, 521 U. S. 261, 267 (1997).) And the second [374] problem is that without first determining whether the tribe has regulatory jurisdiction, it is impossible to know which "immunity defenses" the federal court is supposed to consider. The tribe's law on this subject need not be the same as the State's; indeed, the tribe may decide (as did the common law until relatively recently) that there is no immunity defense whatever without a warrant. See California v. Acevedo, 500 U. S. 565, 581 (1991) (Scalia, J., concurring in judgment). One wonders whether, deprived of its deus ex machina, the concurrence would not alter the conclusion it reached in Part I of its opinion, and agree with us that a proper balancing of state and tribal interests would give the Tribes no jurisdiction over state officers pursuing offreservation violations of state law.

Finally, it is worth observing that the concurrence's resolution would, for the first time, hold a non-Indian subject to the jurisdiction of a tribal court. The question (which we have avoided) whether tribal regulatory and adjudicatory jurisdiction are coextensive is simply answered by the concurrence in the affirmative. As Justice Souter's separate opinion demonstrates, it surely deserves more considered analysis.

* * *

Because the Fallon Paiute-Shoshone Tribes lacked legislative authority to restrict, condition, or otherwise regulate the ability of state officials to investigate off-reservation violations of state law, they also lacked adjudicative authority to hear respondent's claim that those officials violated tribal law in the performance of their duties. Nor can the Tribes identify any authority to adjudicate respondent's § 1983 claim. And since the lack of authority is clear, there is no need to exhaust the jurisdictional dispute in tribal court. State officials operating on a reservation to investigate offreservation violations of state law are properly held accountable for tortious conduct and civil rights violations in either state or federal court, but not in tribal court.

[375] The judgment of the Court of Appeals is reversed, and the case remanded for further proceedings consistent with our opinion.

It is so ordered.

Justice Souter, with whom Justice Kennedy and Justice Thomas join, concurring.

I agree that the Fallon Paiute-Shoshone Tribal Court had no jurisdiction to entertain Hicks's claims against the petitioning state officers here, and I join the Court's opinion. While I agree with the Court's analysis as well as its conclusion, I would reach that point by a different route. Like the Court, I take Montana v. United States, 450 U. S. 544 (1981), to be the source of the first principle on tribal-court civil jurisdiction, see Atkinson Trading Co. v. Shirley, 532 U. S. 645, 659 (2001) (Souter, J., concurring). But while the Court gives emphasis to measuring tribal authority here in light of the State's interest in executing its own legal process to enforce state law governing off-reservation conduct, ante, at 360-365, I would go right to Montana `s rule that a tribe's civil jurisdiction generally stops short of nonmember defendants, 450 U. S., at 565, subject only to two exceptions, one turning on "consensual relationships," the other on respect for "the political integrity, the economic security, or the health or welfare of the tribe," id., at 566.^[11]

Montana applied this presumption against tribal jurisdiction to nonmember conduct on fee land within a reservation; I would also apply it where, as here, a nonmember acts on tribal or trust land, and I would thus make it explicit that land status within a reservation is not a primary jurisdictional [376] fact, but is relevant only insofar as it bears on the application of one of Montana `s exceptions to a particular case. Insofar as I rest my conclusion on the general jurisdictional presumption, it follows for me that, although the holding in this case is "limited to the question of tribal-court jurisdiction over state officers enforcing state law," ante, at 358, n. 2, one rule independently supporting that holding (that as a general matter "the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe," ante, at 359) is not so confined.

I

Petitioners are certainly correct that "[t]ribal adjudicatory jurisdiction over nonmembers is . . . ill-defined," Reply Brief for Petitioners 16, since this Court's own pronouncements on the issue have pointed in seemingly opposite directions. Compare, e. g., Santa Clara Pueblo v. Martinez, 436 U. S. 49, 65 (1978) ("Tribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians"), and United States v. Mazurie, 419 U. S. 544, 557 (1975) ("Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory"), with, e. g., Oliphant v. Suquamish Tribe, 435 U. S. 191, 209 (1978) ("`[T]he limitation upon [tribes'] sovereignty amounts to the right of governing every person within their limits except themselves ` " (quoting Fletcher v. Peck, 6 Cranch 87, 147 (1810))). Oliphant, however, clarified tribal courts' criminal jurisdiction (in holding that they had none as to non-Indians), and that decision is now seen as a significant step on the way to Montana, "the pathmarking case concerning tribal civil authority over nonmembers," Strate v. A-1 Contractors, 520 U. S. 438, 445 (1997). The path marked best is the rule [377] that, at least as a presumptive matter, tribal courts lack civil jurisdiction over nonmembers.^[12]

To be sure, Montana does not of its own force resolve the jurisdictional issue in this case. There, while recognizing that the parties had "raised broad questions about the power of the Tribe to regulate [the conduct of] non-Indians on the reservation," we noted that the issue before us was a "narrow one." 450 U. S., at 557. Specifically, we said, the question presented concerned only the power of an Indian tribe to regulate the conduct of nonmembers "on reservation land owned in fee by nonmembers of the Tribe." Ibid. Here, it is undisputed, the acts complained of occurred on reservation land "controlled by a tribe." Pet. for Cert. 24. But although the distinction between tribal and fee land (and, accordingly, between Montana and this case) surely exists, it does not in my mind call for a different result. I see the legal principles that animated our presumptive preclusion of tribal jurisdiction in Montana as counseling a similar rule as to regulatory, and hence adjudicatory, jurisdiction here.

In Montana, the Court began its discussion of tribes' "inherent authority" by noting that "the Indian tribes have lost many of the attributes of sovereignty." 450 U. S., at 563. [378] In "distinguish[ing] between those inherent powers retained by the tribe and those divested," id., at 564, the Court relied on a portion of the opinion in United States v. Wheeler, 435 U. S. 313, 326 (1978), from which it quoted at length:

"`The areas in which . . . implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and non- members of the tribe. . . .

"`These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by virtue of a tribe's dependent status.' " Montana, supra, at 564.

The emphasis in these passages (supplied by the Montana Court, not by me) underscores the distinction between tribal members and nonmembers, and seems clearly to indicate, without restriction to the criminal law, that the inherent authority of the tribes has been preserved over the former but not the latter. In fact, after quoting Wheeler, the Court invoked Oliphant, supra, which (as already noted) had imposed a per se bar to tribal-court criminal jurisdiction over non-Indians, even with respect to conduct occurring on tribal land. The Montana Court remarked that, "[t]hough Oliphant only determined inherent tribal authority in criminal matters, the principles on which it relied" support a more "general proposition" applicable in civil cases as well, namely, that "the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." 450 U. S., at 565. Accordingly, the Court in Montana repeatedly pressed the member-nonmember distinction, reiterating [379] at one point, for example, that while "the Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members," the "exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation." Id., at 564; cf. Oliphant v. Schlie, 544 F. 2d 1007, 1015 (CA9 1976) (Kennedy, J., dissenting) ("The concept of sovereignty applicable to Indian tribes need not include the power to prosecute nonmembers. This power, unlike the ability to maintain law and order on the reservation and to exclude nondesireable nonmembers, is not essential to the tribe's identity or its self-governing status"), rev'd sub nom. Oliphant v. Suquamish Tribe, 435 U. S. 191 (1978).

To Montana `s "general proposition" confining the subjects of tribal jurisdiction to tribal members, the Court appended two exceptions that could support tribal jurisdiction in some civil matters. First, a tribe may "regulate . . . the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements." And second, a tribe may regulate nonmember conduct that "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." 450 U. S., at 565-566.^[13] But unless one of these exceptions applies, the "general [380] proposition" governs and the tribe's civil jurisdiction does "not extend to the activities of nonmembers of the tribe."

In Strate, we expressly extended the Montana framework, originally applied as a measure of tribes' civil regulatory jurisdiction, to limit tribes' civil adjudicatory jurisdiction. We repeated that "absent express authorization by federal statute or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited circumstances." 520 U. S., at 445. Quoting Montana, we further explained that "[i]n the main" (that is, subject to the two exceptions outlined in the Montana opinion), "`the inherent sovereign powers of an Indian tribe'—those powers a tribe enjoys apart from express provision by treaty or statute—'do not extend to the activities of nonmembers of the tribe.' " 520 U. S., at 445-446. Equally important for purposes here was our treatment of the following passage from Iowa Mut. Ins. Co. v. LaPlante, 480 U. S. 9 (1987), which seemed to state a more expansive jurisdictional position and which had been cited by the Tribal Court in Strate in support of broad tribal-court civil jurisdiction over nonmembers:

"`Tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty. See Montana v. United States, 450 U. S. 544, 565-566 (1981); Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 152-153 (1980); Fisher v. District Court [of Sixteenth Judicial Dist. of Mont.], 424 U. S. [382,] 387-389 [(1976)]. Civil jurisdiction over such activities presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute . . . .' [480 U. S.], at 18." 520 U. S., at 451.

The Strate petitioners fastened upon the statement that "civil jurisdiction over" the activities of nonmembers on reservation lands "presumptively lies in the tribal courts." But we resisted the overbreadth of the Iowa Mutual dictum. [381] We said that the passage "scarcely supports the view that the Montana rule does not bear on tribal-court adjudicatory authority in cases involving nonmember defendants," 520 U. S., at 451-452, and stressed the "three informative citations" accompanying the statement, which mark the true contours of inherent tribal authority over nonmembers:

"The first citation points to the passage in Montana in which the Court advanced `the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe,' with two prime exceptions. The case cited second is Washington v. Confederated Tribes of Colville Reserva- tion, a decision the Montana Court listed as illustrative of the first Montana exception . . . . The third case noted in conjunction with the Iowa Mutual statement is Fisher v. District Court of Sixteenth Judicial Dist. of Mont., a decision the Montana Court cited in support of the second Montana exception . . . ." Id., at 452 (citations omitted).

Accordingly, in explaining and distinguishing Iowa Mutual, we confirmed in Strate what we had indicated in Montana: that as a general matter, a tribe's civil jurisdiction does not extend to the "activities of non-Indians on reservation lands," Iowa Mutual, supra, at 18, and that the only such activities that trigger civil jurisdiction are those that fit within one of Montana `s two exceptions.

After Strate, it is undeniable that a tribe's remaining inherent civil jurisdiction to adjudicate civil claims arising out of acts committed on a reservation depends in the first instance on the character of the individual over whom jurisdiction is claimed, not on the title to the soil on which he acted. The principle on which Montana and Strate were decided (like Oliphant before them) looks first to human relationships, not land records, and it should make no difference per se whether acts committed on a reservation [382] occurred on tribal land or on land owned by a nonmember individual in fee. It is the membership status of the unconsenting party, not the status of real property, that counts as the primary jurisdictional fact.^[14]

II

Limiting tribal-court civil jurisdiction this way not only applies the animating principle behind our precedents, but fits with historical assumptions about tribal authority and serves sound policy. As for history, Justice Stevens has observed that "[i]n sharp contrast to the tribes' broad powers over their own members, tribal powers over nonmembers have always been narrowly confined." Merrion v. Jicarilla Apache Tribe, 455 U. S. 130, 171 (1982) (dissenting opinion). His point is exemplified by the early treaties with those who became known as the five civilized Tribes, which treaties "specifically granted the right of self-government to the tribes [but] specifically excluded jurisdiction over nonmembers." Id., at 171, n. 21 (citing Treaty with the Cherokees, Art. 5, 7 Stat. 481 (1835), Treaty with the Choctaws and Chickasaws, Art. 7, 11 Stat. 612 (1855), and Treaty with the Creeks and Seminoles, Art. 15, 11 Stat. 703 (1856)). In a similar vein, referring to 19th-century federal statutes setting the jurisdiction of the courts of those five Tribes, this Court said in In re Mayfield, 141 U. S. 107, 116 (1891), that the "general object" of such measures was "to vest in the courts of the [Indian] nation jurisdiction of all controversies between Indians, or where a member of the nation is the only party to the proceeding, and to reserve to the courts [383] of the United States jurisdiction of all actions to which its own citizens are parties on either side." And, in fact, to this very day, general federal law prohibits Courts of Indian Offenses (tribunals established by regulation for tribes that have not organized their own tribal court systems) from exercising jurisdiction over unconsenting nonmembers. Such courts have "[c]ivil jurisdiction" only of those actions arising within their territory "in which the defendant is an Indian, and of all other suits between Indians and non-Indians which are brought before the court by stipulation of the parties." 25 CFR § 11.103(a) (2000).

A rule generally prohibiting tribal courts from exercising civil jurisdiction over nonmembers, without looking first to the status of the land on which individual claims arise, also makes sense from a practical standpoint, for tying tribes' authority to land status in the first instance would produce an unstable jurisdictional crazy quilt. Because land on Indian reservations constantly changes hands (from tribes to nonmembers, from nonmembers to tribal members, and so on), a jurisdictional rule under which land status was dispositive would prove extraordinarily difficult to administer and would provide little notice to nonmembers, whose susceptibility to tribal-court jurisdiction would turn on the most recent property conveyances. Cf. Hodel v. Irving, 481 U. S. 704, 718 (1987) (noting the difficulties that attend the "extreme fractionation of Indian lands").

The ability of nonmembers to know where tribal jurisdiction begins and ends, it should be stressed, is a matter of real, practical consequence given "[t]he special nature of [Indian] tribunals," Duro v. Reina, 495 U. S. 676, 693 (1990), which differ from traditional American courts in a number of significant respects. To start with the most obvious one, it has been understood for more than a century that the Bill of Rights and the Fourteenth Amendment do not of their own force apply to Indian tribes. See Talton v. Mayes, 163 U. S. 376, 382-385 (1896); F. Cohen, Handbook of Federal Indian [384] Law 664-665 (1982 ed.) (hereinafter Cohen) ("Indian tribes are not states of the union within the meaning of the Constitution, and the constitutional limitations on states do not apply to tribes"). Although the Indian Civil Rights Act of 1968 (ICRA) makes a handful of analogous safeguards enforceable in tribal courts, 25 U. S. C. § 1302, "the guarantees are not identical," Oliphant, 435 U. S., at 194,^[15] and there is a "definite trend by tribal courts" toward the view that they "ha[ve] leeway in interpreting" the ICRA's due process and equal protection clauses and "need not follow the U. S. Supreme Court precedents `jot-for-jot,' " Newton, Tribal Court Praxis: One Year in the Life of Twenty Indian Tribal Courts, 22 Am. Indian L. Rev. 285, 344, n. 238 (1998). In any event, a presumption against tribal-court civil jurisdiction squares with one of the principal policy considerations underlying Oliphant, namely, an overriding concern that citizens who are not tribal members be "protected . . . from unwarranted intrusions on their personal liberty," 435 U. S., at 210.

Tribal courts also differ from other American courts (and often from one another) in their structure, in the substantive law they apply, and in the independence of their judges. Although some modern tribal courts "mirror American courts" and "are guided by written codes, rules, procedures, and guidelines," tribal law is still frequently unwritten, being based instead "on the values, mores, and norms of a tribe and expressed in its customs, traditions, and practices," and is often "handed down orally or by example from one generation to another." Melton, Indigenous Justice Systems and Tribal Society, 79 Judicature 126, 130-131 (1995). The resulting law applicable in tribal courts is a complex "mix of tribal codes and federal, state, and traditional law," National American Indian Court Judges Assn., Indian [385] Courts and the Future 43 (1978), which would be unusually difficult for an outsider to sort out.

Hence the practical importance of being able to anticipate tribal jurisdiction by reference to a fact more readily knowable than the title status of a particular plot of land. One further consideration confirms the point. It is generally accepted that there is no effective review mechanism in place to police tribal courts' decisions on matters of nontribal law, since tribal-court judgments based on state or federal law can be neither removed nor appealed to state or federal courts. Cf., e. g., 28 U. S. C. § 1441(a) (removal of "any civil action brought in a State court of which the district courts of the United States have original jurisdiction"); § 1257(a) (Supreme Court review of "judgments or decrees rendered by the highest court of a State" where federal law implicated). The result, of course, is a risk of substantial disuniformity in the interpretation of state and federal law, a risk underscored by the fact that "[t]ribal courts are often `subordinate to the political branches of tribal governments,' " Duro, supra, at 693 (quoting Cohen 334-335).

III

There is one loose end. The panel majority in the Ninth Circuit held that "the Montana presumption against tribal court jurisdiction does not apply in this case." 196 F. 3d 1020, 1028 (1999). Since we have held otherwise, should we now remand for application of the correct law? There is room for reasonable disagreement on this point, see post, at 396 (O'Connor, J., concurring in part and concurring in judgment), but on balance I think a remand is unnecessary. The Court's analysis of opposing state and tribal interests answers the opinion of the Ninth Circuit majority; in substance, the issues subject to the Court of Appeals's principal concern have been considered here. My own focus on the Montana presumption was, of course, addressed by the panel (albeit unsympathetically), and the only question that [386] might now be considered by the Circuit on my separate approach to the case is the applicability of the second Montana exception. But as Judge Rymer indicated in her dissent, the uncontested fact that the Tribal Court itself authorized service of the state warrant here bars any serious contention that the execution of that warrant adversely affected the Tribes' political integrity. See 196 F. 3d, at 1033— 1034. Thus, even if my alternative rationale exclusively governed the outcome, remand would be pure formality.

Justice Ginsburg, concurring.

I join the Court's opinion. As the Court plainly states, and as Justice Souter recognizes, the "holding in this case is limited to the question of tribal-court jurisdiction over state officers enforcing state law." Ante, at 358, n. 2 (opinion of the Court); ante, at 376 (Souter, J., concurring). The Court's decision explicitly "leave[s] open the question of tribal-court jurisdiction over nonmember defendants in general," ante, at 358, n. 2, including state officials engaged on tribal land in a venture or frolic of their own, see ante, at 373 (a state officer's conduct on tribal land "unrelated to [performance of his law-enforcement duties] is potentially subject to tribal control").

I write separately only to emphasize that Strate v. A-1 Contractors, 520 U. S. 438 (1997), similarly deferred larger issues. Strate concerned a highway accident on a rightof-way over tribal land. For nonmember governance purposes, the accident site was equivalent to alienated, nonIndian land. Id., at 456. We held that the nonmember charged with negligent driving in Strate was not amenable to the Tribe's legislative or adjudicatory authority. But we "express[ed] no view on the governing law or proper forum" for cases arising out of nonmember conduct on tribal land. Id., at 442. The Court's opinion, as I understand it, does not reach out definitively to answer the jurisdictional questions left open in Strate.

[387] Justice O'Connor, with whom Justice Stevens and Justice Breyer join, concurring in part and concurring in the judgment.

The Court holds that a tribe has no power to regulate the activities of state officials enforcing state law on land owned and controlled by the tribe. The majority's sweeping opinion, without cause, undermines the authority of tribes to "`make their own laws and be ruled by them.' " Strate v. A-1 Contractors, 520 U. S. 438, 459 (1997) (quoting Williams v. Lee, 358 U. S. 217, 220 (1959)). I write separately because Part II of the Court's decision is unmoored from our precedents.

I

A

Today, the Court finally resolves that Montana v. United States, 450 U. S. 544 (1981), governs a tribe's civil jurisdiction over nonmembers regardless of land ownership. Ante, at 358-360. This is done with little fanfare, but the holding is significant because we have equivocated on this question in the past.

In Montana, we held that the Tribe in that case could not regulate the hunting and fishing activities of nonmembers on nontribal land located within the geographical boundaries of the reservation. 450 U. S., at 557. We explained that the Tribe's jurisdiction was limited to two instances—where a consensual relationship exists between the Tribe and nonmembers, or where jurisdiction was necessary to preserve tribal sovereignty—and we concluded that neither instance applied. Id., at 565-567; ante, at 358-360.

Given the facts of Montana, it was not clear whether the status of the persons being regulated, or the status of the land where the hunting and fishing occurred, led the Court to develop Montana `s jurisdictional rule and its exceptions. In subsequent cases, we indicated that the nonmember status of the person being regulated determined Montana `s [388] application, see, e. g., South Dakota v. Bourland, 508 U. S. 679, 694-695, and n. 15 (1993), while in other cases we indicated that the fee simple status of the land triggered application of Montana, see, e. g., Strate v. A-1 Contractors, supra, at 454, and n. 8. This is the Court's first opportunity in recent years to consider whether Montana applies to nonmember activity on land owned and controlled by the tribe. Cf. Atkinson Trading Co. v. Shirley, 532 U. S. 645 (2001).

The Court of Appeals concluded that Montana did not apply in this case because the events in question occurred on tribal land. 196 F. 3d 1020, 1028 (CA9 1999). Because Montana is our best source of "coherence in the various manifestations of the general law of tribal jurisdiction over non-Indians," Atkinson Trading Co. v. Shirley, supra, at 659 (Souter, J., concurring), the majority is quite right that Montana should govern our analysis of a tribe's civil jurisdiction over nonmembers both on and off tribal land. I part company with the majority, however, because its reasoning is not faithful to Montana or its progeny.

B

Montana `s principles bear repeating. In Montana, the Court announced the "general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." 450 U. S., at 565. The Court further explained, however, that tribes do retain some attributes of sovereignty:

"To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. A tribe may also retain inherent power to exercise civil authority over the conduct of [389] non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Id., at 565-566 (citations omitted).

We concluded in that case that hunting and fishing by nonmembers on reservation land held in fee by nonmembers of the Tribe did not fit within either of the "Montana exceptions" that permit jurisdiction over nonmembers. The hunting and fishing in that case did not involve a consensual relationship and did not threaten the security of the Tribe. Id., at 557. We "readily agree[d]" with the Court of Appeals in that case, however, that the Tribe "may prohibit nonmembers from hunting or fishing on land belonging to the Tribe or held by the United States in trust for the Tribe," and that "if the Tribe permits nonmembers to fish or hunt on such lands, it may condition their entry by charging a fee or establishing . . . limits." Ibid. In the cases that followed, we uniformly regarded land ownership as an important factor in determining the scope of a tribe's civil jurisdiction.

We have held that the tribe's power to impose taxes on nonmembers doing business on tribal or trust lands of the reservation is "an essential attribute of Indian sovereignty because it is a necessary instrument of self-government and territorial management." Merrion v. Jicarilla Apache Tribe, 455 U. S. 130, 137 (1982). We held that the tribe's power to tax derived from two distinct sources: the tribe's power of self-government and the tribe's power to exclude. Id., at 137, 149. Recognizing that tribes are "`unique aggregations possessing attributes of sovereignty,' " however, we further explained that the power to tax was "subject to constraints not imposed on other governmental entities" in that the Federal Government could take away that power. Id., at 140-141.

At issue in Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408 (1989), was whether Tribes [390] had the authority to zone particular tracts of land within the boundaries of the reservation owned by nonmembers. Although no opinion garnered a majority, Members of the Court determined the Tribes' zoning authority by considering the Tribes' power to exclude and the Tribes' sovereign interests in preserving the Tribes' political integrity, economic security, and health and welfare. Id., at 423-425, 428-432 (White, J., joined by Rehnquist, C. J., and Scalia and Kennedy, JJ.); id., at 433-435, 443-444 (Stevens, J., joined by O'Connor, J.); id., at 454-455 (Blackmun, J., joined by Brennan and Marshall, JJ.). In the end, the Tribes' power to zone each parcel of land turned on the extent to which the Tribes maintained ownership and control over the areas in which the parcels were located. Id., at 438-444, 444-447 (Stevens, J., joined by O'Connor, J.).

In South Dakota v. Bourland, supra, we were again confronted with a Tribe's attempt to regulate hunting and fishing by nonmembers on lands located within the boundaries of the Tribe's reservation, but not owned by the tribe. In Bourland, the United States had acquired the land at issue from the Tribe under the Flood Control Act and the Cheyenne River Act. Id., at 689-690. We concluded that these congressional enactments deprived the Tribe of "any former right of absolute and exclusive use and occupation of the conveyed lands." Id., at 689. We considered that Montana `s exceptions might support tribal jurisdiction over nonmembers, but decided to leave that issue for consideration on remand. 508 U. S., at 695-696.

We have also applied Montana to decide whether a tribal court had civil jurisdiction to adjudicate a lawsuit arising out of a traffic accident on a state highway that passed through a reservation. Strate v. A-1 Contractors, 520 U. S. 438 (1997). We explained that "Montana delineated—in a main rule and exceptions—the bounds of the power tribes retain to exercise `forms of civil jurisdiction' " over nonmembers. Because our prior cases did not involve jurisdiction of tribal [391] courts, we clarified that "[a]s to nonmembers . . . a tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction." Id., at 453. Again, we considered the status of the land where the nonmember activities occurred. In accord with Montana, we "readily agree[d]" "that tribes retain considerable control over nonmember conduct on tribal land." 520 U. S., at 454. But we determined that the rightof-way acquired for the State's highway rendered that land equivalent to "alienated, non-Indian land." Ibid. Applying Montana, we concluded that the defendant's allegedly tortious conduct did not constitute a consensual relationship that gave rise to tribal court jurisdiction. 520 U. S., at 456— 457. We also found that "[n]either regulatory nor adjudicatory authority over the state highway accident . . . is needed to preserve `the right of reservation Indians to make their own laws and be ruled by them.' " Id., at 459.

Just last month, we applied Montana in a case concerning a Tribe's authority to tax nonmember activity occurring on non-Indian fee land. Atkinson Trading Co. v. Shirley, 532 U. S. 645 (2001). In that case, the Tribe argued that it had the power to tax under Merrion, supra. We disagreed, distinguishing Merrion on the ground that the Tribe's inherent power to tax "only extended to `transactions occurring on trust lands and significantly involving a tribe or its members.' " 532 U. S., at 653 (quoting Merrion, supra, at 137). We explained that "Merrion involved a tax that only applied to activity occurring on the reservation, and its holding is therefore easily reconcilable with the Montana-Strate line of authority, which we deem to be controlling." 532 U. S., at 653.

Montana and our other cases concerning tribal civil jurisdiction over nonmembers occupy a middle ground between our cases that provide for nearly absolute tribal sovereignty over tribe members, see generally Williams v. Lee, 358 U. S., at 218-223, and our rule that tribes have no inherent criminal jurisdiction over nonmembers, see Oliphant v. Suqua- [392] mish Tribe, 435 U. S. 191 (1978). Montana recognizes that tribes retain sovereign interests in activities that occur on land owned and controlled by the tribe, and provides principles that guide our determination of whether particular activities by nonmembers implicate these sovereign interests to a degree that tribal civil jurisdiction is appropriate.

C

In this case, the Court purports to apply Montana —in keeping with the above line of cases—to determine whether the Tribes, "as an exercise of their inherent sovereignty, . . . can regulate state wardens executing a search warrant for evidence of an off-reservation crime." Ante, at 358. The Court's reasoning suffers from two serious flaws: It gives only passing consideration to the fact that the state officials' activities in this case occurred on land owned and controlled by the Tribes, and it treats as dispositive the fact that the nonmembers in this case are state officials.

Under the first Montana exception, a tribe may exercise regulatory jurisdiction where a nonmember enters into a consensual relationship with the tribe. 450 U. S., at 565. The majority in this case dismisses the applicability of this exception in a footnote, concluding that any consensual relationship between tribes and nonmembers "clearly" must be a "private" consensual relationship "from which the official actions at issue in this case are far removed." Ante, at 359, n. 3.

The majority provides no support for this assertion. The Court's decision in Montana did not and could not have resolved the complete scope of the first exception. We could only apply the first exception to the activities presented in that case, namely, hunting and fishing by nonmembers on land owned in fee simple by nonmembers. 450 U. S., at 557. To be sure, Montana is "an opinion . . . not a statute," and therefore it seems inappropriate to speak of what the Mon- [393] tana Court intended the first exception to mean in future cases. See ante, at 372.

State governments may enter into consensual relationships with tribes, such as contracts for services or shared authority over public resources. Depending upon the nature of the agreement, such relationships could provide official consent to tribal regulatory jurisdiction. Some States have formally sanctioned the creation of state-tribal agreements. See, e. g., Mont. Code Ann. § 18-11-101 et seq. (1997) (State-Tribal Cooperative Agreements Act); Neb. Rev. Stat. § 13-1502 et seq. (1997) (State-Tribal Cooperative Agreements Act); Okla. Stat., Tit. 74, § 1221 (Supp. 2001) (authorizing Governor to enter into cooperative agreements on behalf of the State to address issues of mutual interest). In addition, there are a host of cooperative agreements between tribes and state authorities to share control over tribal lands, to manage public services, and to provide law enforcement. See, e. g., Cal. Health & Safety Code Ann. § 25198.1 et seq. (West 1992 and Supp. 2001) (cooperative agreements for hazardous waste management); Cal. Pub. Res. Code Ann. § 44201 et seq. (West 1996) (cooperative agreements for solid waste management); Minn. Stat. § 626.90 et seq. (Supp. 2001) (authorizing cooperative agreements between state law enforcement and tribal peace officers); Nev. Rev. Stat. § 277.058 (Supp. 1999) (cooperative agreements concerning sites of archeological or historical significance); N. M. Stat. Ann. § 9-11-12.1 (Supp. 2000) (cooperative agreements for tax administration); Ore. Rev. Stat. § 25.075 (1999) (cooperative agreements concerning child support and paternity matters); Wash. Rev. Code § 26.25.010 et seq. (1999) (cooperative agreements for child welfare); § 79.60.010 (cooperative agreements among federal, state, and tribal governments for timber and forest management).

Whether a consensual relationship between the Tribes and the State existed in this case is debatable, compare Brief for Petitioners 36-38 with Brief for Respondents Tribal Court [394] in and for the Fallon Paiute-Shoshone Tribes et al. 23-25, but our case law provides no basis to conclude that such a consensual relationship could never exist. Without a full understanding of the applicable relationships among tribal, state, and federal entities, there is no need to create a per se rule that forecloses future debate as to whether cooperative agreements, or other forms of official consent, could ever be a basis for tribal jurisdiction. Compare ante, at 359, n. 3, with ante, at 372.

The second Montana exception states that a tribe may regulate nonmember conduct where that conduct "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." 450 U. S., at 566. The majority concentrates on this aspect of Montana, asking whether "regulatory jurisdiction over state officers in the present context is `necessary to protect tribal self-government or to control internal relations,' " and concludes that it is not. Ante, at 360.

At the outset, the Court recites relatively uncontroversial propositions. A tribe's right to make its own laws and be governed by them "does not exclude all state regulatory authority on the reservation"; a reservation "`is considered part of the territory of the State' "; "States may regulate the activities even of tribe members on tribal land"; and the "`process of [state] courts may run into [a] . . . reservation.' " Ante, at 361, 362, 363 (citations omitted).

None of "these prior statements," however, "accord[s]" with the majority's conclusion that "tribal authority to regulate state officers in executing process related to [an offreservation violation of state law] is not essential to tribal self-government or internal relations." Ante, at 364. Our prior decisions are informed by the understanding that tribal, Federal, and State Governments share authority over tribal lands. See, e. g., Cotton Petroleum Corp. v. New Mexico, 490 U. S. 163, 176-187 (1989) (concurrent jurisdiction of state and tribal governments to impose severance taxes [395] on oil and gas production by nonmembers); Rice v. Rehner, 463 U. S. 713 (1983) (concurrent jurisdiction of Federal and State Governments to issue liquor licenses for transactions on reservations); Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134 (1980) (concurrent jurisdiction of state and tribal governments to tax cigarette purchases by nonmembers). Saying that tribal jurisdiction must "accommodat[e]" various sovereign interests does not mean that tribal interests are to be nullified through a per se rule. Id., at 156.

The majority's rule undermining tribal interests is all the more perplexing because the conduct in this case occurred on land owned and controlled by the Tribes. Although the majority gives a passing nod to land status at the outset of its opinion, ante, at 360, that factor is not prominent in the Court's analysis. This oversight is significant. Montana recognizes that tribes may retain inherent power to exercise civil jurisdiction when the nonmember conduct "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." 450 U. S., at 566. These interests are far more likely to be implicated where, as here, the nonmember activity takes place on land owned and controlled by the tribe. If Montana is to bring coherence to our case law, we must apply it with due consideration to land status, which has always figured prominently in our analysis of tribal jurisdiction. See supra, at 388-392.

This case involves state officials acting on tribal land. The Tribes' sovereign interests with respect to nonmember activities on its land are not extinguished simply because the nonmembers in this case are state officials enforcing state law. Our cases concerning tribal power often involve the competing interests of state, federal, and tribal governments. See, e. g., Cotton Petroleum Corp., supra; Confederated Tribes, supra; Rehner, supra. The actions of state officials on tribal land in some instances may affect tribal sovereign interests to a greater, not lesser, degree than the [396] actions of private parties. In this case, for example, it is alleged that state officers, who gained access to Hicks' property by virtue of their authority as state actors, exceeded the scope of the search warrants and damaged Hicks' personal property.

Certainly, state officials should be protected from civil liability for actions undertaken within the scope of their duties. See infra, at 400-401. The majority, however, does not conclude that the officials in this case were acting within the scope of their duties. Moreover, the majority finds it "irrelevant" that Hicks' lawsuits are against state officials in their personal capacities. Ante, at 365. The Court instead announces the rule that state officials "cannot be regulated in the performance of their law enforcement duties," but "[a]ction unrelated to that is potentially subject to tribal control." Ante, at 373. Here, Hicks alleges that state officials exceeded the scope of their authority under the search warrants. The Court holds that the state officials may not be held liable in Tribal Court for these actions, but never explains where these, or more serious allegations involving a breach of authority, would fall within its new rule of state official immunity.

The Court's reasoning does not reflect a faithful application of Montana and its progeny. Our case law does not support a broad per se rule prohibiting tribal jurisdiction over nonmembers on tribal land whenever the nonmembers are state officials. If the Court were to remain true to the principles that have governed in prior cases, the Court would reverse and remand the case to the Court of Appeals for a proper application of Montana to determine whether there is tribal jurisdiction. Compare 196 F. 3d, at 1032-1034 (Rymer, J., dissenting) (concluding that there is no jurisdiction under Montana ), with 944 F. Supp. 1455, 1466 (Nev. 1996) (assuming, arguendo, that Montana applies and concluding that there is jurisdiction). See also Bourland, 508 U. S., at 695-696.

[397] II

The Court's sweeping analysis gives the impression that this case involves a conflict of great magnitude between the State of Nevada and the Fallon Paiute-Shoshone Tribes. That is not so. At no point did the Tribes attempt to exclude the State from the reservation. At no point did the Tribes attempt to obstruct state officials' efforts to secure or execute the search warrants. Quite the contrary, the record demonstrates that judicial and law enforcement officials from the State and the Tribes acted in full cooperation to investigate an off-reservation crime. Ante, at 355-357; 944 F. Supp., at 1458-1459.

In this case, Hicks attempts to hold state officials (and tribal officials) liable for allegedly exceeding the scope of the search warrants and damaging his personal property. This case concerns the Tribes' civil adjudicatory jurisdiction over state officials. The Court concludes that it cannot address adjudicatory jurisdiction without first addressing the Tribes' regulatory jurisdiction. Ante, at 357-358. But there is no need for the Court to decide the precise scope of a tribe's regulatory jurisdiction, or to decide in this case whether a tribe's adjudicatory jurisdiction equals its regulatory jurisdiction. Cf. ante, at 358, 373-374.

To resolve this case, it suffices to answer the questions presented, which concern the civil adjudicatory jurisdiction of tribal courts. See Pet. for Cert. i. Petitioners contend that tribal court jurisdiction over state officials should be determined with reference to officials' claims of immunity. I agree and would resolve this case by applying basic principles of official and qualified immunity.

The state officials raised immunity defenses to Hicks' claims in Tribal Court. The Tribal Court acknowledged the officials' claims, but did not consider the immunity defenses in determining its jurisdiction. App. to Pet. for Cert. C1—C8. The Federal District Court ruled that because the Tribal Court had not decided the immunity issues, the federal [398] court should stay its hand and not decide the immunity issues while reviewing the Tribal Court's jurisdiction. 944 F. Supp., at 1468-1469, and n. 26. The Ninth Circuit affirmed, concluding that the District Court correctly applied the exhaustion requirement to the immunity issues. 196 F. 3d, at 1029-1031. In my view, the Court of Appeals misunderstood our precedents when it refused to consider the state officials' immunity claims as it reviewed the Tribal Court's civil jurisdiction.

In determining the relationship between tribal courts and state and federal courts, we have developed a doctrine of exhaustion based on principles of comity. See, e. g., Iowa Mut. Ins. Co. v. LaPlante, 480 U. S. 9 (1987); National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845 (1985). In National Farmers Union, a member of the Tribe sued the local school district, an arm of the State, in a personal injury action. Id., at 847. The defendants sued in federal court challenging the Tribal Court's jurisdiction. The District Court concluded that the Tribal Court lacked jurisdiction and enjoined the Tribal Court proceedings. The Court of Appeals reversed, holding that the District Court lacked jurisdiction to enter the injunction.

We reversed the Court of Appeals' conclusion that the District Court lacked jurisdiction over the federal action. We explained that the "extent to which Indian tribes have retained the power to regulate the affairs of non-Indians" is governed by federal law. Id., at 851-852. Likewise, "[t]he question whether an Indian tribe retains the power to compel a non-Indian property owner to submit to the civil jurisdiction of a tribal court is one that must be answered by reference to federal law," and therefore district courts may determine under 28 U. S. C. § 1331 whether a tribal court has exceeded the lawful limits of its jurisdiction. 471 U. S., at 852.

We refused to foreclose entirely the civil jurisdiction of tribal courts over nonmembers as we had foreclosed inherent [399] criminal jurisdiction over nonmembers in Oliphant v. Suquamish Tribe, 435 U. S. 191 (1978). See National Farmers, 471 U. S., at 854-855. Instead, we reasoned that "the existence and extent of a tribal court's jurisdiction will require a careful examination of tribal sovereignty, the extent to which that sovereignty has been altered, divested, or diminished, as well as a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and administrative or judicial decisions." Id., at 855-856 (footnote omitted). We concluded that this "examination should be conducted in the first instance in the Tribal Court itself," and that a federal court should "sta[y] its hand" until after the tribal court has had opportunity to determine its own jurisdiction. Id., at 856-857.

In Iowa Mutual, an insurance company sued members of a Tribe in federal court on the basis of diversity jurisdiction; at the same time, a civil lawsuit by the tribal members was pending against the nonmember insurance company in Tribal Court. 480 U. S., at 11-13. The District Court granted the tribal members' motion to dismiss the federal action for lack of jurisdiction on the ground that the Tribal Court should have had the first opportunity to determine its jurisdiction. The Court of Appeals affirmed.

We reversed and remanded. We made clear that the Tribal Court should be given the first opportunity to determine its jurisdiction, but emphasized that "[e]xhaustion is required as a matter of comity, not as a jurisdictional prerequisite." Id., at 16-17, and n. 8. We explained that tribal court remedies must be exhausted, but the tribal court's "determination of tribal jurisdiction is ultimately subject to review," and may be challenged in district court. Id., at 19.

Later, in Strate, "we reiterate[d] that National Farmers and Iowa Mutual enunciate only an exhaustion requirement, a prudential rule, based on comity." 520 U. S., at 453 (internal quotation marks and citation omitted). See also El Paso Natural Gas Co. v. Neztsosie, 526 U. S. 473, 482-487 [400] (1999). Application of that principle in this case leads me to conclude that the District Court and the Court of Appeals should have considered the state officials' immunity claims as they determined the Tribal Court's jurisdiction.

The doctrines of official immunity, see, e. g., Westfall v. Erwin, 484 U. S. 292, 296-300 (1988), and qualified immunity, see, e. g., Harlow v. Fitzgerald, 457 U. S. 800, 813-819 (1982), are designed to protect state and federal officials from civil liability for conduct that was within the scope of their duties or conduct that did not violate clearly established law. These doctrines short-circuit civil litigation for officials who meet these standards so that these officials are not subjected to the costs of trial or the burdens of discovery. 457 U. S., at 817-818. For example, the Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act, allows the United States to substitute itself for a federal employee as defendant upon certifying that the employee was acting within the scope of his duties. 28 U. S. C. § 2679(d). Nevada law contains analogous provisions. See Nev. Rev. Stat. §§ 41.032, 41.0335— 41.0339 (1996 and Supp. 1999). The employee who successfully claims official immunity therefore invokes the immunity of the sovereign. When a state or federal official asserts qualified immunity, he claims that his actions were reasonable in light of clearly established law. Anderson v. Creighton, 483 U. S. 635 (1987). In those cases, we allow that official to take an immediate interlocutory appeal from an adverse ruling to ensure that the civil proceedings do not continue if immunity should be granted. Mitchell v. Forsyth, 472 U. S. 511, 524-530 (1985).

In this case, the state officials raised their immunity defenses in Tribal Court as they challenged that court's subject matter jurisdiction. App. to Pet. for Cert. J5—J6, K8, K11—K13; 196 F. 3d, at 1029-1031. Thus the Tribal Court and the Appellate Tribal Court had a full opportunity to address the immunity claims. These defendants, like other [401] officials facing civil liability, were entitled to have their immunity defenses adjudicated at the earliest stage possible to avoid needless litigation. It requires no "magic" to afford officials the same protection in tribal court that they would be afforded in state or federal court. Ante, at 373. I would therefore reverse the Court of Appeals in this case on the ground that it erred in failing to address the state officials' immunity defenses. It is possible that Hicks' lawsuits would have been easily disposed of on the basis of official and qualified immunity.

* * *

The Court issues a broad holding that significantly alters the principles that govern determinations of tribal adjudicatory and regulatory jurisdiction. While I agree that Montana guides our analysis, I do not believe that the Court has properly applied Montana. I would not adopt a per se rule of tribal jurisdiction that fails to consider adequately the Tribes' inherent sovereign interests in activities on their land, nor would I give nonmembers freedom to act with impunity on tribal land based solely on their status as state law enforcement officials. I would hold that Montana governs a tribe's civil jurisdiction over nonmembers, and that in order to protect government officials, immunity claims should be considered in reviewing tribal court jurisdiction. Accordingly, I would reverse the judgment of the United States Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion.

Justice Stevens, with whom Justice Breyer joins, concurring in the judgment.

While I join the Court's disposition of the case for the reasons stated by Justice O'Connor, I do not agree with the Court's conclusion that tribal courts may not exercise their jurisdiction over claims seeking the relief authorized by 42 [402] U. S. C. § 1983.^[16] I agree instead with the Solicitor General's submission that a tribal court may entertain such a claim unless enjoined from doing so by a federal court. See Brief for United States as Amicus Curiae 24-30.

The majority's analysis of this question is exactly backwards. It appears to start from the assumption that tribal courts do not have jurisdiction to hear federal claims unless federal law expressly grants them the power, see ante, at 367-368, and then concludes that, because no such express grant of power has occurred with respect to § 1983, tribal courts must lack the authority to adjudicate those claims. Ante, at 368 ("[N]o provision in federal law provides for tribal-court jurisdiction over § 1983 actions"). But the Court's initial assumption is deeply flawed. Absent federal law to the contrary, the question whether tribal courts are courts of general jurisdiction is fundamentally one of tribal law. Cf. Gulf Offshore Co. v. Mobil Oil Corp., 453 U. S. 473, 478 (1981) (State-court subject-matter jurisdiction is "governed [403] in the first instance by state laws " (emphasis added)).^[17] Given a tribal assertion of general subject-matter jurisdiction, we should recognize a tribe's authority to adjudicate claims arising under § 1983 unless federal law dictates otherwise. Cf. id., at 477-478 ("[S]tate courts may assume subject-matter jurisdiction over a federal cause of action absent provision by Congress to the contrary or disabling incompatibility between the federal claim and state-court adjudication").^[18]

I see no compelling reason of federal law to deny tribal courts the authority, if they have jurisdiction over the parties, [404] to decide claims arising under § 1983. Section 1983 creates no new substantive rights, see Chapman v. Houston Welfare Rights Organization, 441 U. S. 600, 617 (1979); it merely provides a federal cause of action for the violation of federal rights that are independently established either in the Federal Constitution or in federal statutory law. Despite the absence of any mention of state courts in § 1983, we have never questioned the jurisdiction of such courts to provide the relief it authorizes.^[19]

Moreover, as our decision in El Paso Natural Gas Co. v. Neztsosie, 526 U. S. 473 (1999), demonstrates, the absence of an express statutory provision for removal to a federal court upon the motion of the defendant provides no obstacle whatsoever to the granting of equivalent relief by a federal district court. See id., at 485 ("Injunction against further litigation in tribal courts would in practical terms give the same result as a removal . . ."). "Why, then, the congressional silence on tribal courts? . . . [I]nadvertence seems the most likely [explanation] . . . . Now and then silence is not pregnant." Id., at 487. There is really no more reason for treating the silence in § 1983 concerning tribal courts as an objection to tribal-court jurisdiction over such claims than there is for treating its silence concerning state courts as an objection to state-court jurisdiction.

In sum, I agree with the interpretation of this federal statute that is endorsed by the Solicitor General of the United States.

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[1] A brief of amici curiae urging reversal was filed for the State of Montana et al. by Joseph P. Mazurek, Attorney General of Montana, Clay R. Smith, Solicitor, and Harley R. Harris, Assistant Attorney General, joined by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Janet Napolitano of Arizona, Richard Blumenthal of Connecticut, Robert A. Butterworth of Florida, Carla J. Stovall of Kansas, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Heidi Heitkamp of North Dakota, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Sheldon Whitehouse of Rhode Island, Charles M. Condon of South Carolina, Mark Barnett o f South Dakota, John Cornyn of Texas, Jan Graham of Utah, James E. Doyle of Wisconsin, and Gay Woodhouseof Wyoming.

Briefs of amici curiae urging affirmance were filed for the Coalition for Local Sovereignty by Kenneth B. Clark; for the Confederated Tribes of the Colville Reservation et al. by William R. Perry; for the Pyramid Lake Paiute Tribe of Nevada et al. by John Fredericks III; and for the Thlopthlocco Tribal Town et al. by D. Michael McBride III and Steven K. Balman.

[2] Hereinafter, Hicks will be referred to as "respondent." The Tribal Court and Judge are also respondents, however, and are included when the term "respondents" is used.

[3] In National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845, 855-856 (1985), we avoided the question whether tribes may generally adjudicate against nonmembers claims arising from on-reservation transactions, and we have never held that a tribal court had jurisdiction over a nonmember defendant. Typically, our cases have involved claims brought against tribal defendants. See, e. g., Williams v. Lee, 358 U. S. 217 (1959). In Strate v. A-1 Contractors, 520 U. S. 438, 453 (1997), however, we assumed that "where tribes possess authority to regulate the activities of nonmembers, civil jurisdiction over disputes arising out of such activities presumably lies in the tribal courts," without distinguishing between nonmember plaintiffs and nonmember defendants. See also Iowa Mut. Ins. Co. v. LaPlante, 480 U. S. 9, 18 (1987). Our holding in this case is limited to the question of tribal-court jurisdiction over state officers enforcing state law. We leave open the question of tribal-court jurisdiction over nonmember defendants in general.

[4] Montana recognized an exception to this rule for tribal regulation of "the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements." 450 U. S., at 565. Though the wardens in this case "consensually" obtained a warrant from the Tribal Court before searching respondent's home and yard, we do not think this qualifies as an "other arrangement" within the meaning of this passage. Read in context, an "other arrangement" is clearly another private consensual relationship, from which the official actions at issue in this case are far removed.

[5] Our holding in Worcester must be considered in light of the fact that "[t]he 1828 treaty with the Cherokee Nation . . . guaranteed the Indians their lands would never be subjected to the jurisdiction of any State or Territory." Organized Village of Kake v. Egan, 369 U. S. 60, 71 (1962); cf. Williams v. Lee, 358 U. S., at 221-222 (comparing Navajo treaty to the Cherokee treaty in Worcester ).

[6] Though Utah & Northern R. Co. did not state what it meant by a "reservation of this kind," the context makes clear that it meant a reservation not excluded from the territory of a State by treaty. See, e. g., Harkness v. Hyde, 98 U. S. 476, 478 (1879); The Kansas Indians, 5 Wall. 737, 739-741 (1867).

[7] That this risk is not purely hypothetical is demonstrated by Arizona ex rel. Merrill v. Turtle, 413 F. 2d 683 (CA9 1969), a case in which the Navajo Tribal Court refused to extradite a member to Oklahoma because tribal law forbade extradition except to three neighboring States. The Ninth Circuit held that Arizona (where the reservation was located) could not enter the reservation to seize the suspect for extradition since (among other reasons) this would interfere with tribal self-government, id., at 685-686.

[8] Justice Stevens questions why it is necessary to consider tribalcourt jurisdiction over § 1983 claims, since we have already determined that "tribal courts lack . . . jurisdiction over `state wardens executing a search warrant for evidence of an off-reservation crime,' " post, at 402, n. 1 (opinion concurring in judgment). It is because the latter determination is based upon Strate `s holding that tribal-court jurisdiction does not exceed tribal regulatory jurisdiction; and because that holding contained a significant qualifier: "[a]bsent congressional direction enlarging tribal-court jurisdiction," 520 U. S., at 453. We conclude (as we must) that § 1983 is not such an enlargement.

[9] Justice Stevens argues that "[a]bsent federal law to the contrary, the question whether tribal courts are courts of general jurisdiction is fundamentally one of tribal law." Post, at 402 (emphasis deleted). The point of our earlier discussion is that Strate is "federal law to the contrary." Justice Stevens thinks Strate cannot fill that role, because it "merely concerned the circumstances under which tribal courts can exert jurisdiction over claims against nonmembers," post, at 403, n. 3. But Strate `s limitation on jurisdiction over nonmembers pertains to subjectmatter, rather than merely personal, jurisdiction, since it turns upon whether the actions at issue in the litigation are regulable by the tribe. One can of course say that even courts of limited subject-matter jurisdiction have general jurisdiction over those subjects that they can adjudicate (in the present case, jurisdiction over claims pertaining to activities by nonmembers that can be regulated)—but that makes the concept of general jurisdiction meaningless, and is assuredly not the criterion that would determine whether these courts received authority to adjudicate § 1983 actions.

[10] Justice O'Connor claims we have gone beyond the scope of the questions presented in this case by determining whether the Tribes could regulate the state game warden's actions on tribal land, because this is a case about tribal "civil adjudicatory jurisdiction." See post, at 397 (opinion concurring in part and concurring in judgment). But the third question presented, see Pet. for Writ of Cert. i, is as follows: "Is the rule of [Montana], creating a presumption against tribal court jurisdiction over nonmembers, limited to cases in which a cause of action against a nonmember arises on lands within a reservation which are not controlled by the tribe?" Montana dealt only with regulatory authority, and is tied to adjudicatory authority by Strate, which held that the latter at best tracks the former. As is made clear in the merits briefing, petitioners' argument is that the Tribes lacked adjudicatory authority because they lacked regulatory authority over the game wardens. See Brief for Petitioners 36-44.

[11] The virtue of the Court's approach is in laying down a rule that would be unquestionably applicable even if in a future case the state officials issuing and executing state process happened to be tribal members (which they apparently are not here).

[12] The Court in Montana v. United States, 450 U. S. 544 (1981), referred to "nonmembers" and "non-Indians" interchangeably. In response to our decision in Duro v. Reina, 495 U. S. 676 (1990), in which we extended the rule of Oliphant to deny tribal courts criminal jurisdiction over nonmember Indians (i. e., Indians who are members of other tribes), Congress passed a statute expressly granting tribal courts such jurisdiction, see 105 Stat. 646, 25 U. S. C. § 1301(2). Because, here, we are concerned with the extent of tribes' inherent authority, and not with the jurisdiction statutorily conferred on them by Congress, the relevant distinction, as we implicitly acknowledged in Strate, is between members and nonmembers of the tribe. In this case, nonmembership means freedom from tribal-court jurisdiction, since none of the petitioning state officers is identified as an Indian of any tribe.

[13] Thus, it is true that tribal courts' "civil subject-matter jurisdiction over non-Indians . . . is not automatically foreclosed, as an extension of Oliphant would require." National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845, 855 (1985). "Montana did not extend the full Oliphant rationale to the civil jurisdictional question—which would have completely prohibited civil jurisdiction over nonmembers." A-1 Contractors v. Strate, 76 F. 3d 930, 937 (CA8 1996). Instead, "the [Montana] Court found that the tribe retained some civil jurisdiction over nonmembers, which the Court went on to describe in the Montana exceptions." Ibid.

[14] Thus, it is not that land status is irrelevant to a proper Montana calculus, only that it is not determinative in the first instance. Land status, for instance, might well have an impact under one (or perhaps both) of the Montana exceptions. See Atkinson Trading Co. v. Shirley, 532 U. S. 645, 659-660 (2001) (Souter, J., concurring); cf. White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 151 (1980) ("[T]here is a significant geographic component to tribal sovereignty").

[15] See also Cohen 667 ("Many significant constitutional limitations on federal and state governments are not included in the [ICRA]").

[16] As an initial matter, it is not at all clear to me that the Court's discussion of the § 1983 issue is necessary to the disposition of this case. Strate v. A-1 Contractors, 520 U. S. 438 (1997), discusses the question whether a tribal court can exercise jurisdiction over nonmembers, irrespective of the type of claim being raised. See id., at 459, n. 14 ("When . . . it is plain that no federal grant provides for tribal governance of nonmembers' conduct on land covered by [the main rule in] Montana [v. United States, 450 U. S. 544 (1981)], . . . it will be equally evident that tribal courts lack adjudicatory authority over disputes arising from such conduct"). Cf. El Paso Natural Gas Co. v. Neztsosie, 526 U. S. 473, 482, n. 4 (1999) ("Strate dealt with claims against nonmembers arising on state highways, and `express[ed] no view on the governing law or proper forum when an accident occurs on a tribal road within a reservation' "). Given the majority's determination in Part II that tribal courts lack such jurisdiction over "state wardens executing a search warrant for evidence of an off-reservation crime," ante, at 357, I fail to see why the Court needs to reach out to discuss the seemingly hypothetical question whether, if the tribal courts had jurisdiction over claims against "state wardens executing a search warrant," they could hear § 1983 claims against those wardens.

[17] This principle is not based upon any mystical attribute of sovereignty, as the majority suggests, see ante, at 366-367, but rather upon the simple, commonsense notion that it is the body creating a court that determines what sorts of claims that court will hear. The questions whether that court has the power to compel anyone to listen to it and whether its assertion of subject-matter jurisdiction conflicts with some higher law are separate issues.

[18] The majority claims that "Strate is [the] `federal law to the contrary' " that explains its restriction of tribal court subject-matter jurisdiction over § 1983 suits. Ante, at 367, n. 8. But Strate merely concerned the circumstances under which tribal courts can exert jurisdiction over claims against nonmembers. See 520 U. S., at 447-448. It most certainly does not address the question whether, assuming such jurisdiction to exist, tribal courts can entertain § 1983 suits. Yet the majority's holding that tribal courts lack subject-matter jurisdiction over § 1983 suits would, presumably, bar those courts from hearing such claims even if jurisdiction over nonmembers would be proper under Strate. Accordingly, whatever else Strate may do, it does notsupply the proposition of federal law upon which the majority purports to rely.

Of course, if the majority, as it suggests, is merely holding that § 1983 does not enlarge tribal jurisdiction beyond what is permitted by Strate, its decision today is far more limited than it might first appear from the Court's sometimes sweeping language. Compare ante, at 369 ("[T]ribal courts cannot entertain § 1983 suits"), with ante, at 366, n. 7 ("We conclude (as we must) that § 1983 is not . . . an enlargement [of tribal-court jurisdiction]"). After all, if the Court's holding is that § 1983 merely fails to "enlarg[e]" tribal-court jurisdiction, then nothing would prevent tribal courts from deciding § 1983 claims in cases in which they properly exercise jurisdiction under Strate.

[19] The authority of state courts to hear § 1983 suits was not always so uncontroversial. See, e. g., Note, Limiting the Section 1983 Action in the Wake of Monroe v. Pape, 82 Harv. L. Rev. 1486, 1497, n. 62 (1969) ("State courts have puzzlingly hesitated on whether they have jurisdiction over § 1983 claims as such, and no case has been found in which a state court granted relief under the section. In one case a state supreme court adopted the expedient of disavowing a position on jurisdiction while denying recovery on the merits").