author: Per Curiam. Mr. Justice Douglas

text:
    CALIFORNIA et al. v. PHILLIPS PETROLEUM CO. et al.
    No. 373.
    Decided May 20, 1968.

      Mary Moran Pajalich and /. Calvin Simpson for petitioners in No. 373. Frederick T. Searls and Malcolm H. Furbush for Pacific Gas & Electric Co., C. Hayden Ames for San Diego Gas & Electric Co., and John Ormasa for Southern California Gas Co. et al., petitioners in No. 380. Solicitor General Marshall and Richard A. Solomon for petitioner in No. 385.

      Tom P. Hamill, R. D. Haworth, James L. Armour, William H. Tabb, and Carroll L. Gilliam for respondent Mobil Oil Corp. in all three cases.

      Together with No. 380, Pacific Gas & Electric Co. et al. v. Phillips Petroleum Co. et al., and No. 385, Federal Power Commission v. Phillips Petroleum Co. et al., also on petitions for writs of certiorari to the same court.

   Per Curiam.

The petitions for writs of certiorari are granted and the judgments are vacated. The cases are remanded to the United States Court of Appeals for the Tenth Circuit for further consideration in light of the Permian Basin Area Rate Cases, 390 U. S. 747.

Mr. Justice Douglas

dissents.

Mr. Justice Marshall took no part in the consideration or decision of these cases.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    BROOKLYN UNION GAS CO. et al. v. STANDARD OIL CO. OF TEXAS et al.
    No. 503.
    Decided May 20, 1968.

      Edwin F. Russell and Barbara M. Suchow for Brooklyn Union Gas Co., Bertram D. Moll and Morton L. Simons for Long Island Lighting Co., and Kent H. Brown for Public Service Commission of the State of New York, petitioners.

      Martin N. Erck and Frank S. Troidl for respondent Humble Oil & Refining Co.; Thomas G. Crouch, Robert W. Henderson, and Donald K. Young for respondent Hunt; Sherman S. Poland for respondent Coates; Robert V. Smith for respondent Patchin-Wilmoth Industries, Inc.; J. Evans Attwell and W. H. Drushel, Jr., for respondent Clark Fuel Producing Co.; William K. Tell, Jr., William R. Slye, and James D. Annett for respondent Texaco Inc.; Phillip D. Endom, Robert E. May, and Francis H. Caskin for respondent Sun Oil Co.; Homer E. McEwen, Jr., for respondent Sunray DX Oil Co.; Richard F. Remmers for respondent Sohio Petroleum Co.; and Kiel Boone for respondent Cox.
   Per Curiam.

The petition for a writ of certiorari is granted and the judgment is reversed. Federal Power Commission v. Sunray DX Oil Co., ante, p. 9.

Mr. Justice Marshall took no part in the consideration or decision of this case.


author: Mr. Chief Justice Warren Mr. Justice Harlan, Mr. Justice Douglas,

text:
    UNITED STATES v. O’BRIEN.
    No. 232.
    Argued January 24, 1968.
    Decided May 27, 1968.

      Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Vinson, Francis X. Beytagh, Jr., Beatrice Rosenberg, and Jerome M. Feit.

      Marvin M. Karpatkin argued the cause for respondent in No. 232 and petitioner in No. 233. With him on the brief were Howard S. Whiteside, Melvin L. Wulf, and Rhoda H. Karpatkin.

      Together with No. 233, O’Brien v. United States, also on certiorari to the same court.

   Mr. Chief Justice Warren

delivered the opinion of the Court.

On the morning of March 31,1966, David Paul O’Brien and three companions burned their Selective Service registration certificates on the steps of the South Boston Courthouse. A sizable crowd, including several agents of the Federal Bureau of Investigation, witnessed the event. Immediately after the burning, members of the crowd began attacking O’Brien and his companions. An FBI agent ushered O’Brien to safety inside the courthouse. After he was advised of his right to counsel and to silence, O’Brien stated to FBI agents that he had burned his registration certificate because of his beliefs, knowing that he was violating federal law. He produced the charred remains of the certificate, which, with his consent, were photographed.

For this act, O’Brien was indicted, tried, convicted, and sentenced in the United States District Court for the District of Massachusetts. He did not contest the fact that he had burned the certificate. He stated in argument to the jury that he burned the certificate publicly to influence others to adopt his antiwar beliefs, as he put it, “so that other people would reevaluate their positions with Selective Service, with the armed forces, and reevaluate their place in the culture of today, to hopefully consider my position.”

The indictment upon which he was tried charged that he “willfully and knowingly did mutilate, destroy, and change by burning . . . [his] Registration Certificate (Selective Service System Form No. 2); in violation of Title 50, App., United States Code, Section 462 (b).” Section 462 (b) is part of the Universal Military Training and Service Act of 1948. Section 462 (b)(3), one of six numbered subdivisions of § 462 (b), was amended by Congress in 1965, 79 Stat. 586 (adding the words italicized below), so that at the time O’Brien burned his certificate an offense was commited by any person,

“who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate . . . .” (Italics supplied.)

In the District Court, O’Brien argued that the 1965 Amendment prohibiting the knowing destruction or mutilation of certificates was unconstitutional because it was enacted to abridge free speech, and because it served no legitimate legislative purpose. The District Court rejected these arguments, holding that the statute on its face did not abridge First Amendment rights, that the court was not competent to inquire into the motives of Congress in enacting the 1965 Amendment, and that the Amendment was a reasonable exercise of the power of Congress to raise armies.

On appeal, the Court of Appeals for the First Circuit held the 1965 Amendment unconstitutional as a law abridging freedom of speech. At the time the Amendment was enacted, a regulation of the Selective Service System required registrants to keep their registration certificates in their “personal possession at all times.” 32 CFR § 1617.1 (1962). Wilful violations of regulations promulgated pursuant to the Universal Military Training and Service Act were made criminal by statute. 50 U. S. C. App. §462 (b)(6). The Court of Appeals, therefore, was of the opinion that conduct punishable under the 1965 Amendment was already punishable under the nonpossession regulation, and consequently that the Amendment served no valid purpose; further, that in light of the prior regulation, the Amendment must have been “directed at public as distinguished from private destruction.” On this basis, the court concluded that the 1965 Amendment ran afoul of the First Amendment by singling out persons engaged in protests for special treatment. The court ruled, however, that O’Brien’s conviction should be affirmed under the statutory provision, 50 U. S. C. App. § 462 (b)(6), which in its view made violation of the nonpossession regulation a crime, because it regarded such violation to be a lesser included offense of the crime defined by the 1965 Amendment.

The Government petitioned for certiorari in No. 232, arguing that the Court of Appeals erred in holding the statute unconstitutional, and that its decision conflicted with decisions by the Courts of Appeals for the Second and Eighth Circuits upholding the 1965 Amendment against identical constitutional challenges. O’Brien cross-petitioned for certiorari in No. 233, arguing that the Court of Appeals erred in sustaining his conviction on the basis of a crime of which he was neither charged nor tried. We granted the Government’s petition to resolve the conflict in the circuits, and we also granted O’Brien’s cross-petition. We hold that the 1965 Amendment is constitutional both as enacted and as applied. We therefore vacate the judgment of the Court of Appeals and reinstate the judgment and sentence of the District Court without reaching the issue raised by O’Brien in No. 233.

I.

When a male reaches the age of 18, he is required by the Universal Military Training and Service Act to register with a local draft board. He is assigned a Selective Service number, and within five days he is issued a registration certificate (SSS Form No. 2). Subsequently, and based on a questionnaire completed by the registrant, he is assigned a classification denoting his eligibility for induction, and “[a]s soon as practicable” thereafter he is issued a Notice of Classification (SSS Form No. 110). This initial classification is not necessarily permanent, and if in the interim before induction the registrant’s status changes in some relevant way, he may be reclassified. After such a reclassification, the local board “as soon as practicable” issues to the registrant a new Notice of Classification.

Both the registration and classification certificates are small white cards, approximately 2 by 3 inches. The registration certificate specifies the name of the registrant, the date of registration, and the number and address of the local board with which he is registered. Also inscribed upon it are the date and place of the registrant’s birth, his residence at registration, his physical description, his signature, and his Selective Service number. The Selective Service number itself indicates his State of registration, his local board, his year of birth, and his chronological position in the local board’s classification record.

The classification certificate shows the registrant’s name, Selective Service number, signature, and eligibility classification. It specifies whether he was so classified by his local board, an appeal board, or the President. It contains the address of his local board and the date the certificate was mailed.

Both the registration and classification certificates bear notices that the registrant must notify his local board in writing of every change in address, physical condition, and occupational, marital, family, dependency, and military status, and of any other fact which might change his classification. Both also contain a notice that the registrant’s Selective Service number should appear on all communications to his local board.

Congress demonstrated its concern that certificates issued by the Selective Service System might be abused well before the 1965 Amendment here challenged. The 1948 Act, 62 Stat. 604, itself prohibited many different abuses involving “any registration certificate, ... or any other certificate issued pursuant to or prescribed by the provisions of this title, or rules or regulations promulgated hereunder . . . .” 62 Stat. 622. Under §§ 12 (b)(l)-(5) of the 1948 Act, it was unlawful (1) to transfer a certificate to aid a person in making false identification; (2) to possess a certificate not duly issued with the intent of using it for false identification; (3) to forge, alter, “or in any manner” change a certificate or any notation validly inscribed thereon; (4) to photograph or make an imitation of a certificate for the purpose of false identification; and (5) to possess a counterfeited or altered certificate. 62 Stat. 622. In addition, as previously mentioned, regulations of the Selective Service System required registrants to keep both their registration and classification certificates in their personal possession at all times. 32 CFR § 1617.1 (1962) (Registration Certificates); 32 CFR § 1623.5 (1962) (Classification Certificates). And §12 (b)(6) of the Act, 62 Stat. 622, made knowing violation of any provision of the Act or rules and regulations promulgated pursuant thereto a felony.

By the 1965 Amendment, Congress added to § 12 (b)(3) of the 1948 Act the provision here at issue, subjecting to criminal liability not only one who “forges, alters, or in any manner changes” but also one who “knowingly destroys, [or] knowingly mutilates” a certificate. We note at the outset that the 1965 Amendment plainly does not abridge free speech on its face, and we do not understand O’Brien to argue otherwise. Amended § 12 (b)(3) on its face deals with conduct having no connection with speech. It prohibits the knowing destruction of certificates issued by the Selective Service System, and there is nothing necessarily expressive about such conduct. The Amendment does not distinguish between public and private destruction, and it does not punish only destruction engaged in for the purpose of expressing views. Compare Stromberg v. California, 283 U. S. 359 (1931). A law prohibiting destruction of Selective Service certificates no more abridges free speech on its face than a motor vehicle law prohibiting the destruction of drivers’ licenses, or a tax law prohibiting the destruction of books and records.

O’Brien nonetheless argues that the 1965 Amendment is unconstitutional in its application to him, and is unconstitutional as enacted because what he calls the “purpose” of Congress was “to suppress freedom of speech.” We consider these arguments separately.

II.

O’Brien first argues that the 1965 Amendment is unconstitutional as applied to him because his act of burning his registration certificate was protected “symbolic speech” within the First Amendment. His argument is that the freedom of expression which the First Amendment guarantees includes all modes of “communication of ideas by conduct,” and that his conduct is within this definition because he did it in “demonstration against the war and against the draft.”

We cannot accept the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O’Brien’s conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. We find that the 1965 Amendment to § 12 (b)(3) of the Universal Military Training and Service Act meets all of these requirements, and consequently that O’Brien can be constitutionally convicted for violating it.

The constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping. Lichter v. United States, 334 U. S. 742, 755-758 (1948); Selective Draft Law Cases, 245 U. S. 366 (1918); see also Ex parte Quirin, 317 U. S. 1, 25-26 (1942). The power of Congress to classify and conscript manpower for military service is “beyond question.” Lichter v. United States, supra, at 756; Selective Draft Law Cases, supra. Pursuant to this power, Congress may establish a system of registration for individuals liable for training and service, and may require such individuals within reason to cooperate in the registration system. The issuance of certificates indicating the registration and eligibility classification of individuals is a legitimate and substantial administrative aid in the functioning of this system. And legislation to insure the continuing availability of issued certificates serves a legitimate and substantial purpose in the system’s administration.

O’Brien’s argument to the contrary is necessarily premised upon his unrealistic characterization of Selective Service certificates. He essentially adopts the position that such certificates are so many pieces of paper designed to notify registrants of their registration or classification, to be retained or tossed in the wastebasket according to the convenience or taste of the registrant. Once the registrant has received notification, according to this view, there is no reason for him to retain the certificates. O’Brien notes that most of the information on a registration certificate serves no notification purpose at all; the registrant hardly needs to be told his address and physical characteristics. We agree that the registration certificate contains much information of which the registrant needs no notification. This circumstance, however, does not lead to the conclusion that the certificate serves no purpose, but that, like the classification certificate, it serves purposes in addition to initial notification. Many of these purposes would be defeated by the certificates’ destruction or mutilation. Among these are:

1. The registration certificate serves as proof that the individual described thereon has registered for the draft. The classification certificate shows the eligibility classification of a named but undescribed individual. Voluntarily displaying the two certificates is an easy and painless way for a young man to dispel a question as to whether he might be delinquent in his Selective Service obligations. Correspondingly, the availability of the certificates for such display relieves the Selective Service System of the administrative burden it would otherwise have in verifying the registration and classification of all suspected delinquents. Further, since both certificates are in the nature of “receipts” attesting that the registrant has done what the law requires, it is in the interest of the just and efficient administration of the system that they be continually available, in the event, for example, of a mix-up in the registrant’s file.. Additionally, in a time of national crisis, reasonable availability to each registrant of the two small cards assures a rapid and uncomplicated means for determining his fitness for immediate induction, no matter how distant in our mobile society he may be from his local board.

2. The information supplied on the certificates facilitates communication between registrants and local boards, simplifying the system and benefiting all concerned. To begin with, each certificate bears the address of the registrant’s local board, an item unlikely to be committed to memory. Further, each card bears the registrant’s Selective Service number, and a registrant who has his number readily available so that he can communicate it to his local board when he supplies or requests information can make simpler the board’s task in locating his file. Finally, a registrant’s inquiry, particularly through a local board other than his own, concerning his eligibility status is frequently answerable simply on the basis of his classification certificate; whereas, if the certificate were not reasonably available and the registrant were uncertain of his classification, the task of answering his questions would be considerably complicated.

3. Both certificates carry continual reminders that the registrant must notify his local board of any change of address, and other specified changes in his status. The smooth functioning of the system requires that local boards be continually aware of the status and whereabouts of registrants, and the destruction of certificates deprives the system of a potentially useful notice device.

4. The regulatory scheme involving Selective Service certificates includes clearly valid prohibitions against the alteration, forgery, or similar deceptive misuse of certificates. The destruction or mutilation of certificates obviously increases the difficulty of detecting and tracing abuses such as these. Further, a mutilated certificate might itself be used for deceptive purposes.

The many functions performed by Selective Service certificates establish beyond doubt that Congress has a legitimate and substantial interest in preventing their wanton and unrestrained destruction and assuring their continuing availability by punishing people who knowingly and wilfully destroy or mutilate them. And we are unpersuaded that the pre-existence of the nonpossession regulations in any way negates this interest.

In the absence of a question as to multiple punishment, it has never been suggested that there is anything improper in Congress’ providing alternative statutory avenues of prosecution to assure the effective protection of one and the same interest. Compare the majority and dissenting opinions in Gore v. United States, 357 U. S. 386 (1958). Here, the pre-existing avenue of prosecution was not even statutory. Regulations may be modified or revoked from time to time by administrative discretion. Certainly, the Congress may change or supplement a regulation.

Equally important, a comparison of the regulations with the 1965 Amendment indicates that they protect overlapping but not identical governmental interests, and that they reach somewhat different classes of wrongdoers. The gravamen of the offense defined by the statute is the deliberate rendering of certificates unavailable for the various purposes which they may serve. Whether registrants keep their certificates in their personal possession at all times, as required by the regulations, is of no particular concern under the 1965 Amendment, as long as they do not mutilate or destroy the certificates so as to render them unavailable. Although as we note below we are not concerned here with the nonpossession regulations, it is not inappropriate to observe that the essential elements of nonpossession are not identical with those of mutilation or destruction. Finally, the 1965 Amendment, like § 12 (b) which it amended, is concerned with abuses involving any issued Selective Service certificates, not only with the registrant’s own certificates. The knowing destruction or mutilation of someone else’s certificates would therefore violate the statute but not the nonpossession regulations.

We think it apparent that the continuing availability to each registrant of his Selective Service certificates substantially furthers the smooth and proper functioning of the system that Congress has established to raise armies. We think it also apparent that the Nation has a vital interest in having a system for raising armies that functions with maximum efficiency and is capable of easily and quickly responding to continually changing- circumstances. For these reasons,- the Government has a substantial interest in assuring the continuing availability of issued Selective Service certificates.

It is equally clear that the 1965 Amendment specifically protects this substantial governmental interest. We perceive no alternative means that would more precisely and narrowly assure the continuing availability of issued Selective Service certificates than a law which prohibits their wilful mutilation or destruction. Compare Sherbert v. Verner, 374 U. S. 398, 407-408 (1963), and the cases cited therein, The 1965 Amendment prohibits such conduct and does nothing more. In other words, both the governmental interest and the operation of the 1965 Amendment are limited to the noncommuni-cative aspect of O’Brien’s conduct. The governmental interest and the scope of the 1965 Amendment are limited to preventing harm to the smooth and efficient functioning of the Selective Service System. When O’Brien deliberately rendered unavailable his registration certificate, he wilfully frustrated this governmental interest. For this noncommunicative impact of his conduct, and for nothing else, he was convicted.

The case at bar is therefore unlike one where the alleged governmental interest in regulating conduct arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful. In Stromberg v. California, 283 U. S. 359 (1931), for example, this Court struck down a statutory phrase which punished people who expressed their “opposition to organized government” by displaying “any flag, badge, banner, or device.” Since the statute there was aimed at suppressing communication it could not be sustained as a regulation of noncommunicative conduct. See also, NLRB v. Fruit & Vegetable Packers Union, 377 U. S. 58, 79 (1964) (concurring opinion).

In conclusion, we find that because of the Government’s substantial interest in assuring the continuing availability of issued Selective Service certificates, because amended § 462 (b) is an appropriately narrow means of protecting this interest and condemns only the independent noncommunicative impact of conduct within its reach, and because the noncommunicative impact of O’Brien’s act of burning his registration certificate frustrated the Government’s interest, a sufficient governmental interest has been shown to justify O’Brien’s conviction.

III.

O’Brien finally argues that the 1965 Amendment is unconstitutional as enacted because what he calls the “purpose” of Congress was “to suppress freedom of speech.” We reject this argument because under settled principles the purpose of Congress, as O’Brien uses that term, is not a basis for declaring this legislation unconstitutional.

It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive. As the Court long ago stated:

“The decisions of this court from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted.” McCray v. United States, 195 U. S. 27, 56 (1904).

This fundamental principle of constitutional adjudication was reaffirmed and the many cases were collected by Mr. Justice Brandéis for the Court in Arizona v. California, 283 U. S. 423, 455 (1931).

Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature, because the benefit to sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading Congress’ purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it is unwise legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a “wiser” speech about it.

O’Brien’s position, and to some extent that of the court below, rest upon a misunderstanding of Grosjean v. American Press Co., 297 U. S. 233 (1936), and Gomillion v. Lightfoot, 364 U. S. 339 (1960). These cases stand, not for the proposition that legislative motive is a proper basis for declaring a statute unconstitutional, but that the inevitable effect of a statute on its face may render it unconstitutional. Thus, in Orosjean the Court, having concluded that the right of publications to be free from certain kinds of taxes was a freedom of the press protected by the First Amendment, struck down a statute which on its face did nothing other than impose just such a tax. Similarly, in Gomillion, the Court sustained a complaint which, if true, established that the “inevitable effect,” 364 U. S., at 341, of the redrawing of municipal boundaries was to deprive the petitioners of their right to vote for no reason other than that they were Negro. In these cases, the purpose of the legislation was irrelevant, because the inevitable effect — the “necessary scope and operation,” McCray v. United States, 195 U. S. 27, 59 (1904) — abridged constitutional rights. The statute attacked in the instant case has no such inevitable unconstitutional effect, since the destruction of Selective Service certificates is in no respect inevitably or necessarily expressive. Accordingly, the statute itself is constitutional.

We think it not amiss, in passing, to comment upon O’Brien’s legislative-purpose argument. There was little floor debate on this legislation in either House. Only Senator Thurmond commented on its substantive features in the Senate. 111 Cong. Rec. 19746, 20433. After his brief statement, and without any additional substantive comments, the bill, H. R. 10306, passed the Senate. Ill Cong. Rec. 20434. In the House debate only two Congressmen addressed themselves to the Amendment— Congressmen Rivers and Bray. Ill Cong. Rec. 19871, 19872. The bill was passed after their statements without any further debate by a vote of 393 to 1. It is principally on the basis of the statements by these three Congressmen that O’Brien makes his congressional-“purpose” argument. We note that if we were to examine legislative purpose in the instant case, we would be obliged to consider not only these statements but also the more authoritative reports of the Senate and House Armed Services Committees. The portions of those reports explaining the purpose of the Amendment are reproduced in the Appendix in their entirety. While both reports make clear a concern with the “defiant” destruction of so-called “draft cards” and with “open” encouragement to others to destroy their cards, both reports also indicate that this concern stemmed from an apprehension that unrestrained destruction of cards would disrupt the smooth functioning of the Selective Service System.

IV.

Since the 1965 Amendment to § 12 (b) (3) of the Universal Military Training and Service Act is constitutional as enacted and as applied, the Court of Appeals should have affirmed the judgment of conviction entered by the District Court. Accordingly, we vacate the judgment of the Court of Appeals, and reinstate the judgment and sentence of the District Court. This disposition makes unnecessary consideration of O'Brien’s claim that the Court of Appeals erred in affirming his conviction on the basis of the nonpossession regulation.

It is so ordered.

Mr. Justice Marshall took no part in the consideration or decision of these cases.

APPENDIX TO OPINION OF THE COURT.

Portions op the Reports op the Committees on Armed Services op the Senate and House Explaining the 1965 Amendment.

The “Explanation of the Bill” in the Senate Report is as follows:

“Section 12 (b) (3) of the Universal Military Training and Service Act of 1951, as amended, provides, among other things, that a person who forges, alters, or changes a draft registration certificate is subject to a fine of not more than $10,000 or imprisonment of not more than 5 years, or both. There is no explicit prohibition in this section against the knowing destruction or mutilation of such cards.

“The committee has taken notice of the defiant destruction and mutilation of draft cards by dissident persons who disapprove of national policy. If allowed to continue unchecked this contumacious conduct represents a potential threat to the exercise of the power to raise and support armies.

“For a person to be subject to fine or imprisonment the destruction or mutilation of the draft card must be ‘knowingly’ done. This qualification is intended to protect persons who lose or mutilate draft cards accidentally.” S. Rep. No. 589, 89th Cong., 1st Sess. (1965). And the House Report explained:

“Section 12 (b)(3) of the Universal Military Training and Service Act of 1951, as amended, provides that a person who forges, alters, or in any manner changes his draft registration card, or any notation duly and validly inscribed thereon, will be subject to a fine of $10,000 or imprisonment of not more than 5 years. H. R. 10306 would amend this provision to make it apply also to those persons who knowingly destroy or knowingly mutilate a draft registration card.

“The House Committee on Armed Services is fully aware of, and shares in, the deep concern expressed throughout the Nation over the increasing incidences in which individuals and large groups of individuals openly defy and encourage others to defy the authority of their Government by destroying or mutilating their draft cards.

“While the present provisions of the Criminal Code with respect to the destruction of Government property may appear broad enough to cover all acts having to do with the mistreatment of draft cards in the possession of individuals, the committee feels that in the present critical situation of the country, the acts of destroying or mutilating these cards are offenses which pose such a grave threat to the security of the Nation that no question whatsoever should be left as to the intention of the Congress that such wanton and irresponsible acts should be punished.

“To this end, H. R. 10306 makes specific that knowingly mutilating or knowingly destroying a draft card constitutes a violation of the Universal Military Training and Service Act and is punishable thereunder; and that a person who does so destroy or mutilate a draft card will be subject to a fine of not more than $10,000 or imprisonment of not more than 5 years.” H. R. Rep. No. 747, 89th Cong., 1st Sess. (1965).

Mr. Justice Harlan,

concurring.

The crux of the Court’s opinion, which I join, is of course its general statement, ante, at 377, that:

“a government regulation is sufficiently justified if it is within the constitutional power of the Government ; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”

I wish to make explicit my understanding that this passage does not foreclose consideration of First Amendment claims in those rare instances when an “incidental” restriction upon expression, imposed by a regulation which furthers an “important or substantial” governmental interest and satisfies the Court’s other criteria, in practice has the effect of entirely preventing a “speaker” from reaching a significant audience with whom he could not otherwise lawfully communicate. This is not such a case, since O’Brien manifestly could have conveyed his message in many ways other than by burning his draft card.

Mr. Justice Douglas,

dissenting.

The Court states that the constitutional power of Congress to raise and support armies is “broad and sweeping” and that Congress’ power “to classify and conscript manpower for military service is 'beyond question.’ ” This is undoubtedly true in times when, by declaration of Congress, the Nation is in a state of war. The underlying and basic problem in this case, however, is whether conscription is permissible in the absence of a declaration of war. That question has not been briefed nor was it presented in oral argument; but it is, I submit, a question upon which the litigants and the country are entitled to a ruling. I have discussed in Holmes v. United States, post, p. 936, the nature of the legal issue and it will be seen from my dissenting opinion in that case that this Court has never ruled on the question. It is time that we made a ruling. This case should be put down for reargument and heard with Holmes v. United States and with Hart v. United States, post, p. 956, in which the Court today denies certiorari.

The rule that this Court will not consider issues not raised by the parties is not inflexible and yields in “exceptional cases” (Duignan v. United States, 274 U. S. 195, 200) to the need correctly to decide the case before the court. E. g., Erie R. Co. v. Tompkins, 304 U. S. 64; Terminiello v. Chicago, 337 U. S. 1.

In such a case it is not unusual to ask for reargument (Sherman v. United States, 356 U. S. 369, 379, n. 2, Frankfurter, J., concurring) even on a constitutional question not raised by the parties. In Abel v. United States, 362 U. S. 217, the petitioner had conceded that an administrative deportation arrest warrant would be valid for its limited purpose even though not supported by a sworn affidavit stating probable cause; but the Court ordered reargument on the question whether the warrant had been validly issued in petitioner’s case. 362 U. S., at 219, n., par. 1; 359 U. S. 940. In Lustig v. United States, 338 U. S. 74, the petitioner argued that an exclusionary rule should apply to the fruit of an unreasonable search by state officials solely because they acted in concert with federal officers (see Weeks v. United States, 232 U. S. 383; Byars v. United States, 273 U. S. 28). The Court ordered reargument on the question raised in a then pending case, Wolf v. Colorado, 338 U. S. 25: applicability of the Fourth Amendment to the States. U. S. Sup. Ct. Journal, October Term, 1947, p. 298. In Donaldson v. Read Magazine, 333 U. S. 178, the only issue presented, according to both parties, was whether the record contained sufficient evidence of fraud to uphold an order of the Postmaster General. Reargument was ordered on the constitutional issue of abridgment of First Amendment freedoms. 333 U. S., at 181-182; Journal, October Term, 1947, p. 70. Finally, in Musser v. Utah, 333 U. S. 95, 96, reargument was ordered on the question of unconstitutional vagueness of a criminal statute, an issue not raised by the parties but suggested at oral argument by Justice Jackson. Journal, October Term, 1947, p. 87.

These precedents demonstrate the appropriateness of restoring the instant case to the calendar for reargument on the question of the constitutionality of a peacetime draft and having it heard with Holmes v. United States and Hart v. United States.

       At the time of the burning, the agents knew only that O'Brien and his three companions had burned small white cards. They later discovered that the card O'Brien burned was his registration certificate, and the undisputed assumption is that the same is true of his companions.

       He was sentenced under the Youth Corrections Act, 18 U. S. C. §5010 (b), to the custody of the Attorney General for a maximum period of six years for supervision and treatment.

       The issue of the constitutionality of the 1965 Amendment was raised by counsel representing O’Brien in a pretrial motion to dismiss the indictment. At trial and upon sentencing, O’Brien chose to represent himself. He was represented by counsel on his appeal to the Court of Appeals.

        O’Brien v. United States, 376 F. 2d 538 (C. A. 1st Cir. 1967).

       The portion of 32 CFR relevant to the instant case was revised as of January 1, 1967. Citations in this opinion are to the 1962 edition which was in effect when O’Brien committed the crime, and when Congress enacted the 1965 Amendment.

       The Court of Appeals nevertheless remanded the ease to the District Court to vacate the sentence and resentence O’Brien. In the court's view, the district judge .might have considered the violation of the 1965 Amendment as an aggravating circumstance in imposing sentence. The Court of Appeals subsequently denied O’Brien’s petition for a rehearing, in which he argued that he had not been charged, tried, or convicted for nonpossession, and that nonpossession was not a lesser included offense of mutilation or destruction. O’Brien v. United States, 376 F. 2d 538, 542 (C. A. 1st Cir. 1967).

        United States v. Miller, 367 F. 2d 72 (C. A. 2d Cir. 1966), cert. denied, 386 U. S. 911 (1967).

        Smith v. United States, 368 F. 2d 529 (C. A. 8th Cir. 1966).

       See 62 Stat. 605, as amended, 65 Stat. 76, 50 U. S. C. App. § 453; 32 CFR § 1613.1 (1962).

       32 CFR § 1621.2 (1962).

       32 CFR § 1613.43a (1962).

       32 CFR §§ 1621.9, 1623.1 (1962).

       32 CFR §§ 1623.1, 1623.2 (1962).

       32 CFR § 1623.4 (1962).

       32 CFR § 1625.1 (1962).

       32 CFR §§ 1625.1, 1625.2, 1625.3, 1625.4, and 1625.11 (1962).

       32 CFR §1625.12 (1962).

       32 CFR §1621.2 (1962).

       32 CFR § 1617.1 (1962), provides, in relevant part:
      “Every person required to present himself for and submit to registration must, after he is registered, have in his personal possession at all times his Registration Certificate (SSS Form No. 2) prepared by his local board which has not been altered and on which no notation duly and validly inscribed thereon has been changed in any manner after its preparation by the local board. The failure of any person to have his Registration Certificate (SSS Form No. 2) in his personal possession shall be prima facie evidence of his failure to register.”

       32 CFR § 1623.5 (1962), provides, in relevant part:
      “Every person who has been classified by a local board must have in his personal possession at all times, in addition to his Registration Certificate (SSS Form No. 2), a valid Notice of Classification (SSS Form No. 110) issued to him showing his current classification.”

       See text, infra, at 382.

        NAACP v. Button, 371 U. S. 415, 438 (1963); see also Sherbert v. Verner, 374 U. S. 398, 403 (1963).

         NAACP v. Button, 371 U. S. 415, 444 (1963); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 464 (1958).

        Bates v. Little Bock, 361 U. S. 516, 524 (1960).

        Thomas v. Collins, 323 U. S. 516, 530 (1945); see also Sherbert v. Verner, 374 U. S. 398, 406 (1963).

        Bates v. Little Rock, 361 U. S. 516, 524 (1960).

        Sherbert v. Verner, 374 U. S. 398, 408 (1963).

       Cf. Milanovich v. United States, 365 U. S. 551 (1961); Heflin v. United States, 358 U. S. 415 (1959); Prince v. United States, 352 U. S. 322 (1957).

       Cf. Milanovich v. United States, 365 U. S. 551 (1961); Heflin v. United States, 358 U. S. 415 (1959); Prince v. United States, 352 U. S. 322 (1957).

       The Court may make the same assumption in a very limited and well-defined class of cases where the very nature of the constitutional question requires an inquiry into legislative purpose. The principal class of cases is readily apparent — those in which statutes have been challenged as bills of attainder. This Court’s decisions have defined a bill of attainder as a legislative Act which inflicts punishment on named individuals or members of an easily ascertainable group without a judicial trial. In determining whether a particular statute is a bill of attainder, the analysis necessarily requires an inquiry into whether the three definitional elements— specificity in identification, punishment, and lack of a judicial trial— are contained in the statute. The inquiry into whether the challenged statute contains the necessary element of punishment has on occasion led the Court to examine the legislative motive in enacting the statute. See, e. g., United States v. Lovett, 328 U. S. 303 (1946). Two other decisions not involving a bill of attainder analysis contain an inquiry into legislative purpose or motive of the type that O’Brien suggests we engage in in this case. Kennedy v. Mendoza-Martinez, 372 U. S. 144, 169-184 (1963); Troy v. Dulles, 356 U. S. 86, 95-97 (1958). The inquiry into legislative purpose or motive in Kennedy and Troy, however, was for the same limited purpose as in the bill of attainder decisions — i. e., to determine whether the statutes under review were punitive in nature. We face no such hiquiry in this case. The 4965 Amendment to § 462 (b) was clearly penal in nature, designed to impose criminal punishment for designated acts.

       The other issues briefed by O’Brien were not raised in the petition for certiorari in No. 232 or in the cross-petition in No. 233. Accordingly, those issues are not before the Court.

       Neither of the decisions cited by the majority for the proposition that Congress’ power to conscript men into the armed services is “ ‘beyond question’ ” concerns peacetime conscription. As I have shown in my dissenting opinion in Holmes v. United States, post, p. 936, the Selective Draft Law Cases, 245 U. S. 366, decided in 1918, upheld the constitutionality of a conscription act passed by Congress more than a month after war had been declared on the German Empire and which was then being enforced in time of war. Lichter v. United States, 334 U. S. 742, concerned the constitutionality of the Renegotiation Act, another wartime measure, enacted by Congress over the period of 1942-1945 [id., at 745, n. 1) and applied in that case to excessive war profits made in 1942-1943 {id., at 753). War had been declared, of course, in 1941 (55 Stat, 795). The Court referred to Congress’ power to raise armies in discussing the “background” (334 U. S., at 753) of the Renegotiation Act, which it upheld as a valid exercise of the War Power.

       Today the Court also denies stays in Shiffman v. Selective Service Board No. 5, and Zigmond v. Selective Service Board No. 16, post, p. 930, where punitive delinquency regulations are invoked against registrants, decisions that present a related question.


author: Me. Justice Douglas

text:
    PUYALLUP TRIBE v. DEPARTMENT OF GAME OF WASHINGTON et al.
    No. 247.
    Argued March 25-26, 1968.
    Decided May 27, 1968.

      Arthur Knodel argued the cause and filed briefs for petitioner in No. 247. Jack E. Tarmer argued the cause and filed a brief for petitioners in No. 319.

      Joseph L. Coniff, Special Assistant Attorney General of Washington, and Mike R. Johnston, Assistant Attorney General, argued the cause for respondents in both cases. With them on the briefs was John J. O’Connell, Attorney General.

      John 8. Martin, Jr., argued the cause for the United States, as amicus curiae, urging reversal in both cases. With him on the brief were Solicitor General Griswold, Assistant Attorney General Martz, Louis F. Claiborne, Roger P. Marquis, and Edmund B. Clark.

      George 8. Woodworth, Assistant Attorney General, argued the cause for the State of Oregon, as amicus curiae, urging affirmance in both cases. With him on the brief were Robert Y. Thornton, Attorney General, and Roy C. Atchison and Henry 8. Kane, Assistant Attorneys General. T. J. Jones III argued the cause for the State of Idaho Fish and Game Department, as amicus curiae, urging affirmance in both cases. With him on the brief was Allan G. Shepard, Attorney General of Idaho.
    Briefs of amici curiae, urging reversal in No. 247, were filed by Arthur Lazarus, Jr., for the Association on American Indian Affairs, Inc., by Albert J. Ahem for the National Congress of American Indians, and by James B. Hovis for the Confederated Bands and Tribes of the Yakima Indian Nation.

      Together with No. 319, Kautz et al. v. Department of Game of Washington et al., also on certiorari to the same court.

   Me. Justice Douglas

delivered the opinion of the Court.

These cases present a question of public importance which involves in the first place a construction of the Treaty of Medicine Creek made with the Puyallup and Nisqually Indians in 1854 (10 Stat. 1132) and secondly the constitutionality of certain conservation measures adopted by the State of Washington allegedly impinging on those treaty rights.

These suits were brought by respondents in the state court against the Indians for declaratory relief and for an injunction. The trial court held for respondents and with exceptions not relevant to our problem the Supreme Court affirmed in part and remanded for further findings on the conservation aspect of the problem. Department of Game v. Puyallup Tribe, 70 Wash. 2d 245, 422 P. 2d 754; Department of Game v. Kautz, 70 Wash. 2d 275, 422 P. 2d 771. We granted the petitions for certiorari and consolidated the cases for oral argument. 389 U. S. 1013.

While the Treaty of Medicine Creek created a reservation for these Indians, no question as to the extent of those reservation rights, if any, is involved here. Our question concerns the fishing rights protected by Article III, which so far as relevant reads as follows:

“The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands . . .

The fish to which the Treaty rights pertain in these cases are salmon and steelhead, anadromous fish that hatch in the fresh water of the Puyallup River and the Nisqually River. The steelhead is a trout; the salmon are of four species — chinook, silver, chum, and pink. They come in from the ocean, pass through the salt water of Puget Sound, enter the fresh waters at the mouths of rivers, and go up these rivers to spawn. The adult salmon die after spawning, but not necessarily the steel-head. In time the fry return to the ocean and start the cycle anew.

People fish for these species far offshore. As respects fishing within its territorial waters, Washington specifies the time when fishing may take place, the areas open to fishing, and the gear that may be used.

Fishing licenses are prescribed. Steelhead may be taken only by hook and not commercially. Salmon may be taken commercially with nets of a certain type in certain areas. Set nets or fixed appliances are barred in “any waters” of the State for the taking of salmon or steelhead. So is “monofilament gill net webbing.”

Nearly every river in the State has a salmon preserve at its mouth; and Commencement Bay at the mouth of the Puyallup River is one of those preserves.

The Puyallup Indians use set nets to fish in Commencement Bay and at the mouth of the Puyallup River and in areas upstream. The Nisqually Indians use set nets in the fresh waters of the Nisqually River. These Indians fish not only for their own needs but commercially as well, supplying the markets with a large volume of salmon. The nets used are concededly illegal if the laws and regulations of the State of Washington are valid; and it is to that question that we now turn.

The “right of taking fish at all usual and accustomed places, in common with” citizens of the Territory under a treaty with the Yakimas was involved in United States v. Winans, 198 U. S. 371. The lands bordering the Columbia River at those places were acquired by private owners who under license from the State acquired the right to fish there and sought to exclude the Indians by reason of their ownership. The Court held that the right to fish at these places was a “continuing” one that could not be destroyed by a change in ownership of the land bordering the river. 198 U. S., at 381. To construe the treaty as giving the Indians “no rights but such as they would have without the treaty” (198 U. S., at 380) would be “an impotent outcome to negotiations and a convention, which seemed to promise more and give the word of the Nation for more.” Ibid. In Seujert Bros. Co. v. United States, 249 U. S. 194, the Court construed the same provision liberally so as to include all “accustomed places” even though the Indians shared those places with other Indians and with white men, rejecting a strict, technical construction not in keeping with the justice of the case.

It is in that spirit that we approach these cases in determining the scope of the treaty rights which the Puyallups and Nisqually obtained.

The treaty right is in terms the right to fish “at all usual and accustomed places.” We assume that fishing by nets was customary at the time of the Treaty; and we also assume that there were commercial aspects to that fishing as there are at present. But the manner in which the fishing may be done and its purpose, whether or not commercial, are not mentioned in the Treaty. We would have quite a different case if the Treaty had preserved the right to fish at the “usual and accustomed places” in the “usual and accustomed” manner. But the Treaty is silent as to the mode or modes of fishing that are guaranteed. Moreover, the right to fish at those respective places is not an exclusive one. Rather, it is one “in common with all citizens of the Territory.” Certainly the right of the latter may be regulated. And we see no reason why the right of the Indians may not also be regulated by an appropriate exercise of the police power of the State. The right to fish “at all usual and accustomed” places may, of course, not be qualified by the State, even though all Indians born in the United States are now citizens of the United States. Act of June 2, 1924, 43 Stat. 253, as superseded by § 201 (b) of the Nationality Act of 1940, 8 U. S. C. § 1401 (a)(2). But the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians.

In Tulee v. Washington, 315 U. S. 681, we had before us for construction a like treaty with the Yakima Indians which guaranteed the right to fish “at all usual and accustomed places, in common with the citizens” of Washington Territory. 12 Stat. 951. Tulee, a member of the tribe, was fishing without a license off the Yakima Indian Reservation; the State convicted him for failure to obtain a license. We reversed, saying:

“[W]hile the treaty leaves the state with power to impose on Indians, equally with others, such restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish, it forecloses the state from charging the Indians a fee of the kind in question here.” Id., at 684.

In other words, the “right” to fish outside the reservation was a treaty “right” that could not be qualified or conditioned by the State. But “the time and manner of fishing . . . necessary for the conservation of fish,” not being defined or established by the treaty, were within the reach of state power.

The overriding police power of the State, expressed in nondiscriminatory measures for conserving fish resources, is preserved. In United States v. Winans, supra, a forerunner of the Tulee case, the Court said:

“[S]urely it was within the competency of the Nation to secure to the Indians such a remnant of the great rights they possessed as ‘taking fish at all usual and accustomed places.’ Nor does it restrain the State unreasonably, if at all, in the regulation of the right.” 198 U. S., at 384.

Another forerunner of Tulee was Kennedy v. Becker, 241 U. S. 556, which also involved a nonexclusive grant of fishing rights to Indians. Indians were charged with the spearing of fish contrary to New York law, their defense being the fishing rights granted by a treaty. The Court, in sustaining the judgments of conviction, said:

“We do not think that it is a proper construction of the reservation in the conveyance to regard it as an attempt either to reserve sovereign prerogative or so to divide the inherent power of preservation as to make its competent exercise impossible. Rather are we of the opinion that the clause is fully satisfied by considering it a reservation of a privilege of fishing and hunting upon the granted lands in common with the grantees, and others to whom the privilege might be extended, but subject nevertheless to that necessary power of appropriate regulation, as to all those privileged, which inhered in the sovereignty of the State over the lands where the privilege was exercised.” 241 U. S., at 563-564.

The use of purse seines and other nets in the salt waters is permitted for commercial purposes under terms and conditions prescribed by the State; and their use in these areas is open to all, Indians as well as others. The use of set nets in fresh water streams or at their mouths is barred not only to Indians but to all others. An expert for the State testified that the reason for that prohibition was conservation:

“The salmon are milling and delaying, and especially in times of low water or early arrival of the run or for any number of reasons, the delay may be considerable.
“Once again the fish are available to the net again and again. This is the main reason for the preserve, so that the milling stock will not be completely taken.
“Then further, this is a point in the bay at the river mouth where you very definitely have a fun-nelling effect. The entire run is funneled into a smaller area and it is very vulnerable.”

Fishing by hook and line is allowed in these areas because when salmon are “milling near the river mouth,” they are not “feeding and they don’t strike very well, so the hook and line fishery will take but a small percentage of the available stock no matter how hard they fish.”

Whether the prohibition of the use of set nets in these fresh waters was a “reasonable and necessary” (70 Wash. 2d, at 261, 422 P. 2d, at 764) conservation measure was left for determination by the trial court when the Supreme Court, deeming the injunction in No. 247 too broad, remanded the case for further findings. When the case was argued here, much was said about the pros and the cons of that issue. Since the state court has given us no authoritative answer to the question, we leave it unanswered and only add that any ultimate findings on the conservation issue must also cover the issue of equal protection implicit in the phrase “in common with.”

Affirmed.

       It should be noted that while a reservation was created by Article II of the Treaty, Article VI provided that the President might remove the Indians from the reservation “on remunerating them for their improvements and the expenses of their removal, or may consolidate them with other friendly tribes or bands.” Article VI also gave the President authority alternatively to divide the reservation into lots and assign them to those individuals or families who were willing to make these places their permanent home. In 1887 Congress passed the General Allotment Act (24 Stat. 388) authorizing the division of the reservation land among the individual Indians. In 1893 Congress passed the Puyallup Allotment Act, 27 Stat. 633, which established a commission to make the allotments. And by the Act of April 28, 1904, 33 Stat. 565, Congress gave “the consent of the United States” to the removal of prior restrictions on alienation by these Indians. The trial court in No. 247 found that all lands within the boundaries of the reservation created by the Treaty have been transferred to private ownership pursuant to these Acts of Congress, with the exception of two small tracts used as a cemetery for members of the tribe; and much of it is now in the City of Tacoma. See State v. Satiacum, 50 Wash. 2d 513, 314 P. 2d 400 (1957). Whether in light of this history the reservation has been extinguished is a question we do not reach. Cf. Seymour v. Superintendent, 368 U. S. 351, 356-359. The Washington Supreme Court seems to hold that the right to fish in streams once within the old reservation is protected by the Article III guarantee. See 70 Wash. 2d, at 261, 262, 422 P. 2d, at 763, 764. There are indeed no other fishing rights specifically reserved in the Treaty of Medicine Creek except those covered by Article III.

       Fishing for salmon in the high seas is governed by a convention agreed to by Canada, Japan, and the United States on May 9, 1952. 4 U. S. T., Pt. I, p. 380, T. I. A. S. No. 2786. As to sockeye salmon and pink salmon, the United States and Canada have a separate convention first signed May 26, 1930, and amended as of July 3, 1957. 8 U. S. T., Pt. I, p. 1057, T. I. A. S. No. 3867.
      Washington bars the use of nets in fishing for salmon in the international waters of the Pacific. Wash. Rev. Code § 75.12.220.

       Wash. Admin. Code §§220-16-010 to 220-48-060 (salmon); Wash. Dept. of Game, Perm. Regs. Nos. 32-35 (1964), Temp. Reg. No. 273 (1968) (steelhead).

       Wash. Rev. Code §§75.28.010-75.28.380; §§77.32.005-77.32.280.

       Wash. Dept, of Game, Perm. Reg. No. 34 (1964).

       Wash. Rev. Code § 75.12.140 defines the permissible areas for reef net fishing. Section 75.12.010, while containing a prohibition against commercial fishing in a large salt water area, allows the director of fisheries to permit commercial fishing there within stated times and with prescribed gear. And see Wash. Admin. Code §§220-32-010 to 220-32-030 (Columbia River area); §§ 220-36-010 to 220-36-020 (Grays Harbor area); §§ 220-40-4)10 to 220-40-4)20 (Willapa Harbor area); §§ 220-48-010 to 220-48-060 (Puget Sound area). Commercial fishing in other areas is banned. Wash. Rev. Code § 75.12.160; Wash. Admin. Code §220-20-010.

       Wash. Rev. Code §§ 75.12.060, 77.16.060.

       Wash. Rev. Code § 75.12.280. It appears that the monofilament type of gear (made of plastic) is less visible in clear water in daylight than the nylon web.

       Wash. Admin. Code §220-48-020.

       Wash. Admin. Code §220-48-020 (10).

       Petitioners in No. 247 argue that the Washington courts lacked jurisdiction to entertain an action against the tribe without the consent of the tribe or the United States Government (citing United States v. United States Fidelity & Guaranty Co., 309 U. S. 506, and Turner v. United States, 248 U. S. 354), viewing the suit as one to “extinguish a Tribal communal fishing right guaranteed by federal Treaty.” This case, however, is a suit to enjoin violations of state law by individual tribal members fishing off the reservation. As such, it is analogous to prosecution of individual Indians for crimes committed off reservation lands, a matter for which there has been no grant of exclusive jurisdiction to federal courts. See, e. g., DeMarrias v. South Dakota, 319 F. 2d 845 (C. A. 8th Cir. 1963); Buckman v. State, 139 Mont. 630, 366 P. 2d 346 (1961). With respect to crimes committed by Indians within reservation boundaries, see 18 U. S. C. §§ 1153, 1162. And see § 401 (a) of Title IV of the 1968 Civil Rights Act, Pub. L. No. 90-284, 82 Stat. 78; Seymour v. Superintendent, 368 U. S. 351; United States v. Celestino, 215 U. S. 278.

       A purse seine is a type of gear that encircles a school of fish, lead weights taking the net down, and a boat operating at each end of the net. A line runs through rings on the bottom of the net, making it possible to close the bottom of the net. Wash. Admin. Code §220-16-010 (15).
      A gill net has a mesh which fish cannot back out of once their heads get through. Gill net fishing is drift fishing, the net being up to 1,800 feet in length. Wash. Admin. Code §220-16-010 (8).
      Purse seines and drift gill nets are used in salt water.

       Set gill nets are often anchored at one end, stretched on a cork line, and held down by weights, while drifting at the other end. They are often located one above another at a short distance. Fish are taken by hand out of the nets as a boat travels its length. The mesh in the gill net varies, depending on the size of the species of salmon that are running — ehinook, 8 to 8% inches; silver, chum, and sockeye, 5% inches. Set gill nets run from 40 to 150 feet depending on the width of the river at the point they are used. Wash. Admin. Code §220-16-010 (19).

       Much emphasis is placed on Maison v. Confederated, Tribes, 314 F. 2d 169 (C. A. 9th Cir. 1963), where another treaty right pertaining to other Indians was tendered in opposition to Oregon's power to regulate salmon fishing in the interests of conservation. This Treaty gave the Indians the right to fish off the reservation at all “usual and accustomed stations in common with citizens of the United States.” Id., at 170. The Court of Appeals held that Oregon could regulate the Indians’ Treaty right to fish under two conditions: “first, that there is a need to limit the talcing of fish, second, that the particular regulation sought to be imposed is ‘indispensable’ to the accomplishment of the needed limitation.” Id., at 172.
      The idea that the conservation measure be “indispensable” is derived from Tulee v. Washington, supra, where in striking down the license fee we said that “the imposition of license fees is not indispensable to the effectiveness of a state conservation program.” 315 U. S., at 685. But that statement in its context meant no more than that it would, indeed, be unusual for a State to have the power to tax the exercise of a “federal right.” As stated by the Court in the sentence immediately following, the license fee “acts upon the Indians as a charge for exercising the very right their ancestors intended to reserve.” Ibid. Cf. Murdock v. Pennsylvania, 319 U. S. 105, 112: “The power to tax the exercise of a privilege is the power to control or suppress its enjoyment.”
      As to a “regulation” concerning the time and manner of fishing outside the reservation (as opposed to a “tax”), we said that the power of the State was to be measured by whether it was “necessary for the conservation of fish.” 315 U. S., at 684.
      The measure of the legal propriety of those kinds of conservation measures is therefore distinct from the federal constitutional standard concerning the scope of the police power of a State. See Ferguson v. Skrupa, 372 U. S. 726; Williamson v. Lee Optical Co., 348 U. S. 483; Daniel v. Family Ins. Co., 336 U. S. 220; Olsen v. Nebraska, 313 U. S. 236.

       Im No. 319, the parties entered into a stipulation of facts which, because of its scope, made unnecessary “the tailoring of the injunction to meet a specific situation, as in the Puyallup case . . . .” 70 Wash. 2d, at 280, 422 P. 2d, at 774. The Washington Supreme Court did, however, remand to the trial court with instructions to limit the injunction only to those violations of Washington law that had been stipulated to be presently necessary to the conservation of the fish runs. It was stipulated that the “usual and accustomed fishing grounds” (within the meaning of the Treaty) encompassed the Nisqually River and its tributaries downstream from the Nisqually Reservation. The parties further stipulated that the defendants had fished contrary to state fishing conservation laws and regulations since 1960; that “[i]f permitted to continue, the defendants’ commercial fishery would virtually exterminate the salmon and steelhead fish runs of the Nisqually River”; and that “it is necessary for proper conservation of the salmon and steelhead fish runs of the Nisqually River . . . that the plaintiffs enforce state fishery conservation laws and regulations to the fishing activities of the defendants at their usual and accustomed grounds.”


author: Mr. Justice Douglas Mr. Justice Stewart,

text:
    MENOMINEE TRIBE OF INDIANS v. UNITED STATES.
    No. 187.
    Argued January 22, 1968.
    Reargued April 25, 1968.—
    Decided May 27, 1968.

      Charles A.. Hobbs reargued the cause for petitioner. With him on the briefs on the reargument and on the original argument were John W. Cragun, Angelo A. Iadaróla, and James R. Modrall III.

      Louis F. Claiborne reargued the cause for the United States. With him on the brief on the reargument were Solicitor General Grisiuold and Assistant Attorney General Martz, and on the original argument Mr. Gris-wold, Acting Assistant Attorney General Harrison, and Roger P. Marquis.

      Bronson C. La Follette, Attorney General of Wisconsin, argued the cause on the reargument for the State of Wisconsin, as amicus curiae. With him on the briefs was William F. Eich, Assistant Attorney General.
    Briefs of amici curiae were filed by Albert J. Ahem for the National Congress of American Indians, and by Arthur Lazarus, Jr., for the Association of American Indian Affairs, Inc.
   Mr. Justice Douglas

delivered the opinion of the Court.

The Menominee Tribe of Indians was granted a reservation in Wisconsin by the Treaty of Wolf River in 1854. 10 Stat. 1064. By this treaty the Menominees retro-ceded certain lands they had acquired under an earlier treaty and the United States confirmed to them the Wolf River Reservation “for a home, to be held as Indian lands are held.” Nothing was said in the 1854 treaty about hunting and fishing rights. Yet we agree with the Court of Claims that the language “to be held as Indian lands are held” includes the right to fish and to hunt. The record shows that the lands covered by the Wolf River Treaty of 1854 were selected precisely because they had an abundance of game. See Menominee Tribe v. United States, 95 Ct. Cl. 232, 240-241 (1941). The essence of the Treaty of Wolf River was that the Indians were authorized to maintain on the new lands ceded to them as a reservation their way of life which included hunting and fishing.

What the precise nature and extent of those hunting and fishing rights were we need not at this time determine. For the issue tendered by the present decision of the Court of Claims, 179 Ct. Cl. 496, 388 F. 2d 998, is whether those rights, whatever their precise extent, have been extinguished.

That issue arose because, beginning in 1962, Wisconsin took the position that the Menominees were subject to her hunting and fishing regulations. Wisconsin prosecuted three Menominees for violating those regulations and the Wisconsin Supreme Court held that the state regulations were valid, as the hunting and fishing rights of the Menominees had been abrogated by Congress in the Menominee Indian Termination Act of 1954. 68 Stat. 250, as amended, 25 U. S. C. §§ 891-902.

Thereupon the tribe brought suit in the Court of Claims against the United States to recover just compensation for the loss of those hunting and fishing rights. The Court of Claims by a divided vote held that the tribe possessed hunting and fishing rights under the Wolf River Treaty; but it held, contrary to the Wisconsin Supreme Court, that those rights were not abrogated by the Termination Act of 1954. We granted the petition for a writ of certiorari in order to resolve that conflict between the two courts. 389 U. S. 811. On oral argument both petitioner and respondent urged that the judgment of the Court of Claims be affirmed. The State of Wisconsin appeared as amicus curiae and argued that that judgment be reversed.

In 1953 Congress by concurrent resolution instructed the Secretary of the Interior to recommend legislation for the withdrawal of federal supervision over certain American Indian tribes, including the Menominees. Several bills were offered, one for the Menominee Tribe that expressly preserved hunting and fishing rights. But the one that became the Termination Act of 1954, viz., H. R. 2828, did not mention hunting and fishing rights. Moreover, counsel for the Menominees spoke against the bill, arguing that its silence would by implication abolish those hunting and fishing rights. It is therefore argued that they were abolished by the Termination Act.

The purpose of the 1954 Act was by its terms “to provide for orderly termination of Federal supervision over the property and members” of the tribe. Under its provisions, the tribe was to formulate a plan for future control of tribal property and service functions theretofore conducted by the United States. On or before April 30, 1961, the Secretary was to transfer to a tribal corporation or to a trustee chosen by him all property real and personal held in trust for the tribe by the United States.

The Menominees submitted a plan, looking toward the creation of a county in Wisconsin out of the former reservation and the creation by the Indians of a Wisconsin corporation to hold other property of the tribe and its members. The Secretary of the Interior approved the plan with modifications; the Menominee Enterprises, Inc., was incorporated; and numerous ancillary laws were passed by Wisconsin integrating the former reservation into its county system of government. The Termination Act provided that after the transfer by the Secretary of title to the property of the tribe, all federal supervision was to end and “the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction.”

It is therefore argued with force that the Termination Act of 1954, which became fully effective in 1961, submitted the hunting and fishing rights of the Indians to state regulation and control. We reach, however, the opposite conclusion. The same Congress that passed the Termination Act also passed Public Law -280, 67 Stat. 588, as amended, 18 U. S. C. § 1162. The latter came out of the same committees of the Senate and the House as did the Termination Act; and it was amended in a way that is critical here only two months after the Termination Act became law. As amended, Public Law 280 granted designated States, including Wisconsin, jurisdiction “over offenses committed by or against Indians in the areas of Indian country” named in the Act, which in the case of Wisconsin was described as “All Indian country within the State.” But Public Law 280 went on to say that “Nothing in this section . . . shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.” (Emphasis added.) That provision on its face contains no limitation; it protects any hunting, trapping, or fishing right granted by a federal treaty. Public Law 280, as amended, became the law in 1954, nearly seven years before the Termination Act became fully effective in 1961. In 1954, when Public Law 280 became effective, the Menominee Reservation was still “Indian country” within the meaning of Public Law 280.

Public Law 280 must therefore be considered in pari materia with the Termination Act. The two Acts read together mean to us that, although federal supervision of the tribe was to cease and all tribal property was to be transferred to new hands, the hunting and fishing rights granted or preserved by the Wolf River Treaty of 1854 survived the Termination Act of 1954.

This construction is in accord with the overall legislative plan. The Termination Act by its terms provided for the “orderly termination of Federal supervision over the property and members” of the tribe. 25 U. S. C. § 891. (Emphasis added.) The Federal Government ceded to the State of Wisconsin its power of supervision over the tribe and the reservation lands, as evident from the provision of the Termination Act that the laws of Wisconsin “shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within [its] jurisdiction.”

The provision of the Termination Act (25 U. S. C. § 899) that “all statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to the members of the tribe” plainly refers to the termination of federal supervision. The use of the word “statutes” is potent evidence that no treaty was in mind.

We decline to construe the Termination Act as a backhanded way of abrogating the hunting and fishing rights of these Indians. While the power to abrogate those rights exists (see Lone Wolf v. Hitchcock, 187 U. S. 553, 564-567) “the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress.” Pigeon River Co. v. Cox Co., 291 U. S. 138, 160. See also Squire v. Capoeman, 351 U. S. 1.

Our conclusion is buttressed by the remarks of the legislator chiefly responsible for guiding the Termination Act to enactment, Senator Watkins, who stated upon the occasion of the signing of the bill that it “in no way violates any treaty obligation with this tribe.”

We find it difficult to believe that Congress, without explicit statement, would subject the United States to a claim for compensation by destroying property rights conferred by treaty, particularly when Congress was purporting by the Termination Act to settle the Government's financial obligations toward the Indians.

Accordingly the judgment of the Court of Claims is

Affirmed.

Mr. Justice Marshall took no part in the consideration or decision of this case.

Mr. Justice Stewart,

with whom Mr. Justice Black joins,

dissenting.

By the Treaty of Wolf River in 1854, 10 Stat. 1064, the United States granted to the Menominee Tribe of Indians a reservation “to be held as Indian lands are held.” As the Court says, this language unquestionably conferred special hunting and fishing rights within the boundaries of the reservation. One hundred years later, in the Menominee Indian Termination Act of 1954, 68 Stat. 250, 25 U. S. C. §§ 891-902, Congress provided for the termination of the reservation and the transfer of title to a tribal corporation. The Act provided that upon termination of the reservation,

“[T]he laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction.” 25 U. S. C. § 899.

The reservation was formally terminated on April 30, 1961, seven years after the Termination Act, and the State of Wisconsin has ever since subjected the Menom-inees, just as any other citizens, to its hunting and fishing regulations. State v. Sanapaw, 21 Wis. 2d 377, 124 N. W. 2d 41.

The Menominees instituted this proceeding against the United States, asking compensation for the taking of their special rights. Shoshone Tribe v. United States, 299 U. S. 476. The Court of Claims denied compensation on the ground that the Termination Act had not in fact extinguished those rights, and that they remained immune from regulation by Wisconsin. The Court today agrees. I do not.

The statute is plain on its face: after termination the Menominees are fully subject to state laws just as other citizens are, and no exception is made for hunting and fishing laws. Nor does the legislative history contain any indication that Congress intended to say anything other than what the unqualified words of the statute express. In fact two bills which would have explicitly preserved hunting and fishing rights were rejected in favor of the bill ultimately adopted — a bill which was opposed by counsel for the Menominees because it failed to preserve their treaty rights.

The Court today holds that the Termination Act does not mean what it says. The Court’s reason for reaching this remarkable result is that it finds “in pari materia” another statute which, I submit, has nothing whatever to do with this case.

That statute, Public Law 280, 67 Stat. 588, as amended, 68 Stat. 795, 18 U. S. C. § 1162 and 28 U. S. C. § 1360, granted to certain States, including Wisconsin, general jurisdiction over “Indian country” within their boundaries. Several exceptions to the general grant were enumerated, including an exception from the grant of criminal jurisdiction for treaty-based hunting and fishing rights. 18 U. S. C. § 1162 (b). But this case does not deal with state jurisdiction over Indian country; it deals with state jurisdiction over Indians after Indian country has been terminated. Whereas Public Law 280 provides for the continuation of the special hunting and fishing rights while a reservation exists, the Termination Act provides for the applicability of all state laws without exception after the reservation has disappeared.

The Termination Act by its very terms provides:

“[A] 11 statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to the members of the tribe_” 25 U. S. C. § 899.

Public Law 280 is such a statute. It has no application to the Menominees now that their reservation is gone.

The 1854 Treaty granted the Menominees special hunting and fishing rights. The 1954 Termination Act, by subjecting the Menominees without exception to state law, took away those rights. The Menominees are entitled to compensation.

I would reverse the judgment of the Court of Claims.

        Menominee Tribe v. United States, 179 Ct. Cl. 496, 503-504, 388 F. 2d 998, 1002.

       As stated by the Supreme Court of Wisconsin:
      “It would seem unlikely that the Menominees would have knowingly relinquished their special fishing and hunting rights which they enjoyed on their own lands, and have accepted in exchange other lands with respect to which such rights did not extend. They undoubtedly believed that these rights were guaranteed to them when these- other lands were ceded to them ‘to be held as Indian lands are held.’ Construing this ambiguous provision of the 1854 treaty favorably to the Menominees, we determine that they enjoyed the same exclusive hunting rights free from the restrictions of the state’s game laws over the ceded lands, which comprised the Menominee Indian Reservation, as they had enjoyed over the lands ceded to the United States by the 1848 treaty.” State v. Sanapaw, 21 Wis. 2d 377, 383, 124 N. W. 2d 41, 44 (1963).
      The Court said in United States v. Winans, 198 U. S. 371, 380-381, “[W]e will construe a treaty with the Indians as ‘that unlettered people’ understood it, and ‘as justice and reason demand, in all cases where power is exerted by the strong over those to whom they owe care and protection,’ and counterpoise the inequality ‘by the superior justice which looks only to the substance of the right without regard to technical rules.’ ”
      As the Solicitor General points out in his brief, the words “to be held as Indian lands are held” sum up in a single phrase the familiar provisions of earlier treaties which recognized hunting and fishing as normal incidents of Indian life. See Treaty of January 3, 1786, with the Choctaws, 7 Stat. 22; Treaty of January 31, 1786, with the Shawnees, 7 Stat. 27; Treaty of January 9, 1789, with the Wyandots, 7 Stat. 29; Treaty of August 3, 1795, with the Wyandots, 7 Stat. 52; Treaty of November 10, 1808, with the Osages, 7 Stat. 109; Treaty of August 24, 1835, with the Comanches, 7 Stat. 475.

        State v. Sanapaw, 21 Wis. 2d 377, 124 N. W. 2d 41.

       See Shoshone Tribe v. United States, 299 U. S. 476.

       H. R. Con. Res. 108, 83d Cong., 1st Sess., 67 Stat. b132.

       S. 2813 and H. R. 7135, 83d Cong., 2d Sess.

       Joint Hearings, Subcommittees of Committees on Interior and Insular Affairs, 83d Cong., 2d Sess., Pt. 6, on S. 2813, H. R. 2828, and H. R. 7135, pp. 697, 704.

       The Termination Act also provided for a closing of the membership roll of the tribe with distribution to the enrollees of certificates of beneficial interest in the tribal property. The roll was closed in December 1957. 22 Fed. Reg. 9951.

       26 Fed. Reg. 3726.

       Wisconsin questions whether Menominee Enterprises, Inc., to which all tribal assets were conveyed pursuant to the termination plan (26 Fed. Reg. 3726), should be viewed as the successor entity to the tribe and the present holder of the hunting and fishing rights, and, if so, to what extent the corporation or the tribal members thereof can withhold or parcel out these rights.
      The Menominees, on the other hand, claim the rights are held by Menominee Indian Tribe of Wisconsin, Inc., a tribal body organized in 1962. Its Articles of Incorporation provide for four categories of membership (Article X): Menominee Indian membership (§1 (a)) (all Menominee Indians appearing on the final roll of the tribe approved by the Secretary of the Interior, n. 8, supra); Associate membership of Menominee descendants (§ 1 (b)) (any descendants of enrolled Menominee Indians or recipients through inheritance of Menominee Enterprises securities); Associate membership of persons married to enrolled Menominees (§1 (c)); and Associate membership of non-Indians (§ 1 (d)). In March 1968, the first category was enlarged by amendment of Art. X, § 1 (a), of the Articles of Incorporation to include all descendants of enrolled Menominee Indians with at least one-quarter Menominee blood, one or both of whose parents resided on the Menominee Reservation at the time of the descendant’s birth. The corporation also adopted a resolution defining those persons entitled to exercise the hunting and fishing rights, which provided:
      “All tribal members, as defined in Article X of the Articles of Incorporation, Section 1 (a), and only such members, shall have the right to exercise tribal hunting and fishing rights, subject to tribal regulations;
      “PROVIDED, HOWEVER, that any member who violates any tribal hunting or fishing regulation may upon finding of the Council of Chiefs be declared ineligible to exercise such rights, for such period of time as the Council of Chiefs may specify.”
      We believe it inappropriate, however, to resolve the question of who the beneficiaries of the hunting and fishing rights may be; and we expressly reserve decision on it. Neither it nor the nature of those rights nor the extent, if any, to which Wisconsin may regulate them has been fully briefed and argued by the parties either in the Court of Claims or in this Court, and the posture of the present litigation does not require their resolution.

       As originally enacted Public Law 280 exempted the Menominees from its provisions. The House Reports on Pub. L. 280 (H. R. 1063, 83d Cong., 1st Sess.) and on Pub. L. 661 (H. R. 9821, 83d Cong., 2d Sess.) indicate that the Menominees had specifically asked for exemption from the provisions of the bill that eventually became Pub. L. 280, on the ground that their tribal law and order program was functioning satisfactorily. Subsequently, the tribe reconsidered its position and sponsored H. R. 9821, amending Pub. L. 280 to extend its provisions to the Menominee Reservation. The Department of the Interior recommended favorable action on the proposed amendment, and the amendment was enacted into law on August 24, 1954 (68 Stat. 795), two months after the passage of the Menominee Termination Act. See H. R. Rep. No. 848, 83d Cong., 1st Sess., 6 (1953); H. R. Rep. No. 2322, 83d Cong., 2d Sess. (1954).

       The Act creating the Wisconsin Territory (5 Stat. 10) contained an express reservation of Indian rights, though both the Enabling Act of 1846 (9 Stat. 56), and the Act admitting Wisconsin to the Union in 1848 (9 Stat. 233) were silent on the subject. It was only a few months after Wisconsin achieved statehood that the Menominees ceded all of their Wisconsin lands to the United States in anticipation of the tribe’s removal to other lands west of the Mississippi. Treaty of October 18, 1848, 9 Stat. 952. But as already noted, this removal never fully succeeded, and the Menominee Reservation created by the Treaty of Wolf River was carved out of the lands the Indians had previously ceded to the United States.
      The State argues that since it was admitted into the Union on an equal footing with the original States, its sovereignty over the lands designated in 1854 as the Menominee Reservation attached in some degree between the time the Indians ceded all of their Wisconsin lands to the United States in 1848 and the time when the United States ceded back a certain portion of those lands for the reservation in 1854. Wisconsin contends that any hunting or fishing privileges guaranteed the Menominees free from state regulation did not survive the dissolution of the reservation and the termination of the trusteeship of the United States over the Menominees. At that time, it is said, Wisconsin’s long dormant power to exercise jurisdiction over those reservation lands was awakened by the termination of the reservation.
      If any hiatus in title to the reservation lands in question occurred between 1848 and 1854, any jurisdiction that the State may have acquired over those would not have survived the Treaty of 1854. The Treaty of Wolf River was, under Article VI of the Constitution, the “supreme law of the land,” and the exercise of rights on reservation lands guaranteed to the tribe by the Federal Government would not be subject to state regulation, at least in absence of a cession by Congress. Cf. Ward v. Race Horse, 163 U. S. 504, 514. In this connection it should be noted that in 1853 the Wisconsin Legislature consented to the establishment of the Menominee Reservation subsequently confirmed by the 1854 Treaty (1853 Wis. Jt. Res., c. I), an action which can be fairly construed as a disclaimer of any jurisdiction the State may have possessed.

       100 Cong. Rec. 8538.

       See n. 4, supra.

       Compare the hearings on the Klamath Termination bill, which took place shortly before the Menominee bills were reached, in which Senator Watkins expressed the view that perhaps the Government should “buy out” the Indians’ hunting and fishing rights rather than preserve them after termination. See Joint Hearings, Subcommittees of the Committees on Interior and Insular Affairs, 83d Cong., 2d Sess., Pt. 4, on S. 2745 and H. R. 7320, pp. 254-255.

       The Termination Act was adopted in response to an earlier congressional resolution which stated in part:
      “[I]t is the policy of Congress, as rapidly as possible, to make the Indians within the territorial limits of the United States subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States . . . 67 Stat. b!32.

       I cannot attach any significant weight to an offhand remark in a speech made by one Senator after the enactment of the bill. Ante, at 413.
      It is, of course, irrelevant that the legislative history reveals no intention by the Congress to incur a financial obligation to the Menominees. If what the Congress did took away the Menominees’ property rights, then regardless of congressional intent they are entitled to compensation from the United States for the taking.

       H. R. 7135 and S. 2813, 83d Cong., 2d Sess.

       H. R. 2828, 83d Cong., 2d Sess.

       “I think it is clear that [the bill] does affect those treaty rights and that those treaties are abrogated. Certainly it abolishes the tribal right to exclusive hunting and fishing privileges, because automatically upon the final termination date, the Menominee Reservation so far as hunting and fishing is concerned, would become subject to the laws of Wisconsin.” Joint Hearings on S. 2813, H. R. 2828, and H. R. 7135, Subcommittees of Committees on Interior and Insular Affairs, 83d Cong., 2d Sess., Pt. 6, pp. 692, 708.

       “Indian country” is defined in 18 U. S. C. § 1151 as land within Indian reservations, dependent Indian communities, and Indian allotments.
      Public Law 280 as originally enacted in 1953, 67 Stat. 588, did not include the Menominee reservation. In 1954 the statute was amended to include that reservation. 68 Stat. 795. From that time until the reservation was terminated in 1961, Public Law 280 governed the extent to which the State could assert jurisdiction over the Menominees on their reservation.

       The only real relevance of Public Law 280 lies in its demonstration that when Congress wants to except treaty rights from jurisdictional grants, it knows how to do so. Cf. Klamath Termination Act, 68 Stat. 718, 25 U. S. C. § 564 et seq., enacted by the same Congress that enacted the Menominee Termination Act, which explicitly preserves fishing rights. 25 U. S. C. § 564m (b).

       If, as the Court seems to say, the exceptions enumerated in Public Law 280 continue in effect after termination of Indian country, it follows that Wisconsin cannot now tax, or otherwise regulate the use of, property owned by the Menominees. 18 U. S. C. § 1162 (b); 28 U. S. C. § 1360 (b). Cf. Snohomish County v. Seattle

        Disposal Co., 70 Wash. 2d 668, 425 P. 2d 22, holding that Public Law 280 prohibits zoning regulation of a garbage dump on reservation land leased to non-Indians. Certiorari was denied, 389 U. S. 1016, Mr. Justice Douglas, joined by Mr. Justice White, dissenting.