author:
Justice Breyer
      Justice O’Connor,

text:
    CHICKASAW NATION v. UNITED STATES
    No. 00-507.
    Argued October 2, 2001
    Decided November 27, 2001

      Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Kennedy, and Ginsburg, JJ., joined, and in which Scalia and Thomas, JJ., joined as to all but Part II-B. O’Connor, J., filed a dissenting opinion, in which Souter, J., joined, post, p. 96.

      Graydon Dean Luthey, Jr., argued the cause for petitioners. With him on the briefs were Stephen W. Ray, Bob W. Rabón, and Dennis W. Arrow.

      Edward C. DuMont argued the cause for the United States. With him on the brief were Solicitor General Olson, Acting Assistant Attorney General Fallon, Deputy Solicitor General Wallace, Gary R. Allen, and David English Carmack.

      Together with Choctaw Nation of Oklahoma v. United States (see this Court’s Rule 12.4), also on certiorari to the same court.

      Briefs of amici curiae urging reversal were filed for the San Carlos Apache Tribe by Richard T. Treon; for the San Manuel Band of Serrano Mission Indians by Jerome L. Levine and Frank R. Lawrence; for the Seminole Tribe of Florida et al. by Hans Walker, Jr., and Judith A. Shapiro; and for the Shakopee Mdewakanton Sioux (Dakota) Community et al. by Mark J. Streitz and Michael J. Wahoske.

      Briefs of amici curiae urging affirmance were filed for the town of Led-yard, Connecticut, et al. by Benjamin S. Sharp, Guy R. Martin, and Donald C. Mitchell.

      Briefs of amici curiae were filed for the Lower Sioux Indian Community in Minnesota et al. by James M. Schoessler, Henry M. Buffalo, Jr., Mark A. Anderson, and Dennis J. Peterson; and for the Muscogee (Creek) Nation by L. Susan Work.

   Justice Breyer

delivered the opinion of the Court.

In these cases we must decide whether a particular subsection in the Indian Gaming Regulatory Act, 102 Stat. 2467-2486,25 U. S. C. §§2701-2721 (1994 ed.), exempts tribes from paying the gambling-related taxes that chapter 35 of the Internal Revenue Code imposes—taxes that States need not pay. We hold that it does not create such an exemption.

I

The relevant Indian Gaming Regulatory Act (Gaming Act) subsection, as codified in 25 U. S. C. § 2719(d)(1), reads as follows:

“The provisions of [the Internal Revenue Code of 1986] (including sections 1441, 3402(q), 6041, and 60501, and chapter 35 of such [Code]) concerning the reporting and withholding of taxes with respect to the winnings from gaming or wagering operations shall apply to Indian gaming operations conducted pursuant to this chapter, or under a Tribal-State compact entered into under section 2710(d)(3) of this title that is in effect, in the same manner as such provisions apply to State gaming and wagering operations.”

The subsection says that Internal Revenue Code provisions that “concer[n] the reporting and withholding of taxes” with respect to gambling operations shall apply to Indian tribes in the same way as they apply to States. The subsection also says in its parenthetical that those provisions “includ[e]” Internal Revenue Code “chapter 35.” Chapter 35, however, says nothing about the reporting or the withholding of taxes. Rather, that chapter simply imposes taxes — excise taxes and occupational taxes related to gambling — -from which it exempts certain state-controlled gambling activities. See, e.g., 26 U.S.C. §4401(a) (1994 ed.) (imposing 0.25% excise tax on each wager); §4411 (imposing $50 occupational tax on each individual engaged in wagering business); §4402(3) (exempting state-operated gambling operations, such as lotteries).

In this lawsuit two Native American Indian Tribes, the Choctaw and Chickasaw Nations, claim that the Gaming Act subsection exempts them from paying those chapter 35 taxes from which States are exempt. Brief for Petitioners 34-36. They rest their claim upon the subsection’s explicit parenthetical reference to chapter 35. The Tenth Circuit rejected their claim on the ground that the subsection, despite its parenthetical reference, applies only to Code provisions that concern the “reporting and withholding of taxes.” 208 F. 3d 871, 883-884 (2000); see also 210 F. 3d 389 (2000). The Court of Appeals for the Federal Circuit, however, reached the opposite conclusion. Little Six, Inc. v. United States, 210 F. 3d 1361, 1366 (2000). We granted certiorari in order to resolve the conflict. We agree with the Tenth Circuit.

II

The Tribes’ basic argument rests upon the subsection’s explicit reference to “chapter 35” — contained in a parenthetical that refers to four other Internal Revenue Code provisions as well. The subsection’s language outside the parenthetical says that the subsection applies to those Internal Revenue Code provisions that concern “reporting and withholding.” The other four parenthetical references are to provisions that concern, or at least arguably concern, reporting and withholding. See 26 U. S. C. § 1441 (1994 ed. and Supp. V) (withholding of taxes for nonresident alien); § 3402(q) (withholding of taxes from certain gambling winnings); § 6041 (reporting by businesses of payments, including payments of gambling winnings, to others); §60501 (reporting by businesses of large cash receipts, arguably applicable to certain gambling winnings or receipts).

But what about chapter 35? The Tribes eorrectly point out that chapter 35 has nothing to do with “reporting and withholding.” Brief for Petitioners 28-29. They add that the reference must serve some purpose, and the only purpose that the Tribes can find is that of expanding the scope of the Gaming Act’s subsection beyond reporting and withholding provisions — to the tax-imposing provisions that chapter 35 does contain. The Gaming Act therefore must exempt them (like States) from those tax payment requirements. The Tribes add that at least the reference to chapter 35 makes the subsection ambiguous. And they ask us to resolve the ambiguity by applying a special Indian-related interpretative canon, namely, “‘statutes are to be construed liberally in favor of the Indians with ambiguous provisions interpreted to their benefit.’” Id., at 13 (quoting Montana v. Blackfeet Tribe, 471 U. S. 759, 766 (1985)).

We cannot accept the Tribes’ claim. We agree with the Tribes that rejecting their argument reduces the phrase “(including... chapter 35)...” to surplusage. Nonetheless, we can find no other reasonable reading of the statute.

A

The language of the statute is too strong to bend as the Tribes would wish — i. e., so that it gives the chapter 35 reference independent operative effect. For one thing, the language outside the parenthetical is unambiguous. It says without qualification that the subsection applies to “provisions ... concerning the reporting and withholding of taxes.” And the language inside the parenthetical, prefaced with the word “including,” literally says the same. To “include” is to “contain” or “comprise as part of a whole.” Webster’s Ninth New Collegiate Dictionary 609 (1985). In this instance that which “contains” the parenthetical references — the “whole” of which the references are “parts” — is the phrase “provisions . . . concerning the reporting and withholding of taxes . . . .” The use of parentheses emphasizes the fact that that which is within is meant simply to be illustrative, hence redundant — a circumstance underscored by the lack of any suggestion that Congress intended the illustrative list to be complete. . Cf. 26 U. S. C. § 3406 (1994 ed.) (backup withholding provision not mentioned in parenthetical).

Nor can one give the chapter 35 reference independent operative effect without' seriously rewriting the language of the rest of the statute. One would have to read the word “including” to mean what it does not mean, namely, “including ... and.” One would have to read the statute as if, for example, it placed “chapter 35” outside the parenthetical and said “provisions of the . . . Code including chapter 35 and also provisions ... concerning the reporting and withholding of taxes ....” Or, one would have to read the language as if it said “provisions of the . . . Code . . . concerning the taxation and the reporting and withholding of taxes . . . .” We mention this latter possibility because the congressional bill that became the law before us once did read that way. But when the bill left committee, it contained not the emphasized words (“the taxation and”) but the cross-reference to chapter 35.

We recognize the Tribes’ claim (made here for the first time) that one could avoid rewriting the statute by reading the language outside the parenthetical as if it referred to two kinds of “provisions of the . . . Code”: first, those “concerning the reporting and withholding of taxes with respect to the winnings from gaming,” and, second, those “concerning ... wagering operations.” See Reply Brief for Petitioners 8-10. The subsection’s grammar literally permits this reading. But that reading, even if ultimately comprehensible, is far too convoluted to believe Congress intended it. Nor is there any reason to think Congress intended to sweep within the subsection’s scope every Internal Revenue Code provision concerning wagering — a result that this, unnatural reading would accomplish.

The subject matter at issue also counsels against accepting the Tribes’ interpretation. That subject matter is tax exemption. When Congress enacts a tax exemption, it ordinarily does so explicitly. We can find no comparable instance in which Congress legislated an exemption through an inexplicit numerical cross-reference — especially a cross-reference that might easily escape notice.

As we have said, the more plausible role for the parenthetical to play in this subsection is that of providing an illustrative list of examples. So considered, “chapter 35” is simply a bad example — an example that Congress included inadvertently. The presence of a bad example in a statute does not warrant rewriting the remainder of the statute’s language. Nor does it necessarily mean that the statute is ambiguous, i. e., “capable of being understood in two or more possible senses or ways.” Webster’s Ninth New Collegiate Dictionary 77 (1985). Indeed, in ordinary life, we would understand an analogous instruction — say, “Test drive some cars, including Plymouth, Nissan, Chevrolet, Ford, and Kitchenaid” — not as creating ambiguity, but as reflecting a mistake. Here too, in context, common sense suggests that the cross-reference is simply a drafting mistake, a failure to delete an inappropriate cross-reference in the bill that Congress later enacted into law. Cf. Little Six, Inc. v. United States, 229 F. 3d 1383, 1385 (CA Fed. 2000) (Dyk, J., dissenting from denial of rehearing en banc) (“The language of the provision has all the earmarks of a simple mistake in legislative drafting”).

B

The Gaming Act’s legislative history on balance supports our conclusion. The subsection as it appeared in the original Senate bill applied both to taxation and to reporting and withholding. It read as follows:

“Provisions of the Internal Revenue Code... concerning the taxation and the reporting and withholding of taxes with respect to gambling or wagering operations shall apply to Indian gaming operations ... the same as they apply to State operations.” S. 555, 100th Cong., 1st Sess., 37 (1987).

With the “taxation” language present, it would have made sense to include chapter 35, which concerns taxation, in a parenthetical that included other provisions that concern reporting and withholding. But the Senate committee deleted the taxation language. Why did it permit the cross-reference to chapter. 35 to remain? Committee documents do not say.

The Tribes argue that the committee intentionally left it in the statute in order to serve as a substitute for the word “taxation.” An amicus tries to support this view by pointing to a tribal representative’s testimony that certain Tribes were “opposed to any indication where Internal Revenue would be collecting taxes from the tribal bingo operations.” Hearings on S. 555 and S. 1303 before the Senate Select Committee on Indian Affairs, 100th Cong., 1st Sess., 109 (1987) (statement of Lionel John, Executive Director of United South and Eastern Tribes). . Other Tribes thought the “taxation” language too “vague,” preferring a clear statement “that the Internal Revenue Service is not being granted authority to tax tribes.” Id., at 433,435 (statement of Charles W. Blackwell, Representative of the American Indian Tribal Government and Policy Consultants, Inc.).

Substitution of “chapter 35” for the word “taxation,” however, could not have served the tribal witnesses purposes, for doing so took from the bill the very words that made clear the tribes would not be taxed and substituted language that made it more likely they would be taxed. Nor can we believe that anyone seeking to grant a tax exemption would intentionally substitute a confusion-generating numerical cross-reference, see Part II-A, supra, for pre-existing language that unambiguously carried out that objective. It is far easier to believe that the drafters, having included the entire parenthetical while the word “taxation” was still part of the bill, unintentionally failed to remove what had become a superfluous numerical cross-reference — particularly since the tax-knowledgeable Senate Finance Committee never received the opportunity to examine the bill. Cf. S. Doc. No. 100-1, Senate Manual 30 (1987) (proposed legislation concerning revenue measures shall be referred to the Committee on Finance).

Finally, the Tribes point to a letter written by one of the Gaming Act’s authors, stating that “by including reference to Chapter 35,” Congress intended “that the tax treatment of wagers conducted by tribal governments be the same as that for wagers conducted by state governments under Chapter 35.” App. to Pet. for Cert. 113a. This letter, however, was written after the event. It expresses the views of only one member of the committee. And it makes no effort to explain the critical legislative circumstance, namely, the elimination of the word “taxation” from the bill. The letter may express the Senator’s interpretive preference, but that preference cannot overcome the language of the statute and the related considerations we have discussed. See Heintz v. Jenkins, 514 U. S. 291, 298 (1995) (A “statement [made] not during the legislative process, but after the statute became law ... is not a statement upon which other legislators might have relied in voting for or against the Act, but it simply represents the views of one informed person on an issue about which others may (or may not) have thought differently”). Cf. New York Telephone Co. v. New York State Dept. of Labor, 440 U. S. 519, 564, n. 18 (1979) (Powell, J., dissenting) (“The comments ... of a single Congressman, delivered long after the original passage of the [act at issue], are of no aid in determining congressional intent...”).

In sum, to adopt the Tribes’ interpretation would read back into the Act the very word “taxation” that the Senate committee deleted. We ordinarily will not assume that Congress intended “‘to enact statutory language that it has earlier discarded in favor of other language.’ ” INS v. Cardoza-Fonseca, 480 U. S. 421, 443 (1987) (quoting Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U. S. 359, 392-393 (1980)); Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186, 200 (1974) (same); Mescalero Apache Tribe v. Jones, 411 U. S. 145, 157 (1973) (same). There is no special reason for doing so here.

C

The Tribes point to canons of interpretation that favor their position. The Court has often said that “ ‘every clause and word of a statute’” should, “‘if possible,’” be given “ ‘effect.’ ” United States v. Menasche, 348 U. S. 528, 538-539 (1955) (quoting Montclair v. Ramsdell, 107 U. S. 147, 152 (1883)). The Tribes point out that our interpretation deprives the words “chapter 35” of any effect. The Court has also said that “statutes are to be construed liberally in favor of the Indians with ambiguous provisions interpreted to their benefit.” Montana v. Blackfeet Tribe, 471 U. S., at 766; South Carolina v. Catawba Tribe, Inc., 476 U. S. 498, 520 (1986) (Blackmun, J., dissenting). The Tribes point out that our interpretation is not to the Indians’ benefit.

Nonetheless, these canons do not determine how to read this statute. For one thing, canons are not mandatory rules. They are guides that “need not be conclusive.” Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 115 (2001). They are designed to help judges determine the Legislature’s intent as embodied in particular statutory language. And other circumstances evidencing congressional intent can overcome their force. In this instance, to accept as conclusive the canons on which the Tribes rely would produce an interpretation that we conclude would conflict with the intent embodied in the statute Congress wrote. Cf. Choteau v. Burnet, 283 U. S. 691 (1931) (upholding taxation where congressional intent reasonably clear); Superintendent of Five Civilized Tribes v. Commissioner, 295 U. S. 418 (1935) (same); Mescalero Apache Tribe v. Jones, supra (same). In light of the considerations discussed earlier, we cannot say that the statute is “fairly capable” of two interpretations, cf. Montana v. Blackfeet Tribe, supra, at 766, nor that the Tribes’ interpretation is fairly “possible.”

Specific canons “are often countered ... by some maxim pointing in a different direction.” Circuit City Stores, Inc. v. Adams, supra, at 115. The canon requiring a court to give effect to each word “if possible” is sometimes offset by the canon that permits a court to reject words “as surplus-age” if “inadvertently inserted or if repugnant to the rest of the statute . . . .” K. Llewellyn, The Common Law Tradition 525 (1960). And the latter canon has particular force here where the surplus words consist simply of a numerical cross-reference in a parenthetical. Cf. Cabell Huntington Hospital, Inc. v. Shalala, 101 F. 3d 984, 990 (CA4 1996) (“A parenthetical is, after all, a parenthetical, and it cannot be used to overcome the operative terms of the statute”).

Moreover, the canon that assumes Congress intends its statutes to benefit the tribes is offset by the canon that warns us against interpreting federal statutes as providing tax exemptions unless those exemptions are clearly expressed. See United States v. Wells Fargo Bank, 485 U. S. 351, 354 (1988) (“[Exemptions from taxation . . . must be unambiguously proved”); Squire v. Capoeman, 351 U. S. 1, 6 (1956) (“[T]o be valid, exemptions to tax laws should be clearly expressed”); United States Trust Co. v. Helvering, 307 U. S. 57, 60 (1939) (“Exemptions from taxation do not rest upon implication”). Nor can one say that the pro-Indian canon is inevitably stronger — particularly where the interpretation of a congressional statute rather than an Indian treaty is at issue. Cf. post, at 100 (O’Connor, J., dissenting). This Court’s earlier cases are too individualized, involving too many different kinds of legal circumstances, to warrant any such assessment about the two canons’ relative strength. Compare, e. g., Choate v. Trapp, 224 U. S. 665, 675-676 (1912) (interpreting statement in treaty-related Indian land patents that land is “nontaxable” as creating property right invalidating later congressional effort to tax); Squire, supra, at 3 (Indian canon offsetting tax canon when related statutory provision and history make clear that language freeing Indian land “‘of all charge or incumbrance whatsoever’” includes tax); McClanahan v. Arizona Tax Comm'n, 411 U. S. 164, 174 (1973) (state tax violates principle of Indian sovereignty embodied in treaty), with Mescalero, supra (relying on tax canon to find Indians taxable); Choteau, supra (language makes clear no exemption); Five Tribes, supra (same).

Consequently, the canons here cannot make the difference for which the Tribes argue. We conclude that the judgments of the Tenth Circuit must be affirmed.

It is so ordered.

Justice O’Connor,

with whom Justice Souter joins, dissenting.

The Court today holds that 25 U. S. C. § 2719(d) (1994 ed.) clearly and unambiguously fails to give Indian Nations (Nations) the exemption from federal wagering excise and related occupational taxes enjoyed by the States. Because I believe § 2719(d) is subject to more than one interpretation, and because “statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit,” Montana v. Blackfeet Tribe, 471 U. S. 759, 766 (1985), I respectfully dissent.

I

I agree with the Court that § 2719(d) incorporates an error in drafting. I disagree, however, that the section’s reference to chapter 35 is necessarily that error.

As originally proposed in the Senate, the bill that became the Indian Gaming Regulatory Act (IGRA) would have applied all gambling and wagering-related sections of the Internal Revenue Code to the Nations in the same manner as the States:

“Provisions of the Internal Revenue Code of 1986, concerning the taxation and the reporting and .withholding of taxes with respect to gambling or wagering operations shall apply to Indian gaming operations conducted pursuant to this Act the same as they apply to State operations.” S. 555, 100th Cong., 1st Sess., 37 (1987).

The Senate Indian Affairs Committee altered the language of this bill in two contradictory ways. It restricted the applicable Code sections to those relating to the “reporting and withholding of taxes with respect to the winnings” from gaming operations. 25 U. S. C. § 2719(d). It also added a parenthetical listing specific Code sections to be applied to the Nations in the same manner as the States, including chapter 35, a Code provision that relates to gambling operations generally, but not to the reporting and withholding of gambling winnings. Ibid.

One of these two changes must have been made in error. There is no reason to assume, however, that it must have been the latter. It is equally likely that Congress intended § 2719(d) to apply chapter 35 to the Nations, but adopted too restrictive a general characterization of the applicable sections.

The Court can do no more than speculate that the bill’s drafters included the parenthetical while the original restriction was in place and failed to remove it when that restriction was altered. See ante, at 92. Both the inclusion of the parenthetical and the alteration of the restriction occurred in the Senate committee, S. Rep. No. 100-446 (1988), and there is no way to determine the order in which they were adopted. If the parenthetical was added after the restriction, one could just as easily characterize the restriction as an unintentional holdover from a previous version of the bill.

True, reading the statute to grant the Nations the exemption requires the section’s reference to the “reporting and withholding of taxes with respect to the winnings” from gaming operations to sustain a meaning the words themselves cannot bear. But the Court’s reading of the statute fares no better: It requires excising from § 2719(d) Congress’ explicit reference to chapter 35. This goes beyond treating statutory language as mere surplusage. See Potter v. United States, 155 U. S. 438, 446 (1894) (the presence of statutory language “cannot be regarded as mere surplusage; it means something”); cf. ante, at 89. Surplusage is redundant statutory language, Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 697-698 (1995); W. Popkin, Materials on Legislation: Political Language and the Political Process 214 (3d ed. 2001) — the Court’s reading negates language that undeniably bears separate meaning. This is not a step to be undertaken lightly.

Both approaches therefore require rewriting the statute, see ante, at 89. Neither of these rewritings is necessarily more “serious” than the other: At most, each involves doing no more than reversing a change made in committee. Cf. ante, at 90.

The Court argues that, because the reference to chapter 35 occurs in a parenthetical, negating this language does less damage to the statute than concluding that the restrictive language outside the parenthetical is too narrowly drawn. I am aware of no generally accepted canon of statutory construction favoring language outside of parentheses to language within them, see, e.g., W. Eskridge, P. Frickey, & E. Garrett, Legislation and Statutory Interpretation, App. C (2000) (listing canons), nor do I think it wise for the Court to adopt one today. The importance of statutory language depends not on its punctuation, but on its meaning. See United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439, 454 (1993) (“[A] purported plain-meaning analysis based only on punctuation is necessarily incomplete and runs the risk of distorting a statute’s true meaning”).

The fact that the parenthetical is illustrative does not change the analysis: If Congress’ illustration does not match its general description, there is as much reason to question the description as the illustration. Where another general description is possible — and was in fact part of the bill at an earlier stage — Congress’ choice of an example that matches the earlier description is at least ambiguous. Moreover, as §2719(d)’s parenthetical specifically lists statutory sections to be applied to the Nations, one might in fact conclude that the doctrine that the specific governs the general, Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U. S. 437, 445 (1987), makes this specific parenthetical even more significant than the general restriction that follows.

Nor is negating Congress’ clear reference to chapter 35 required by the policy behind the statute. If anything, congressional policy weighs in favor of the Nations. Congress’ central purpose in enacting IGRA was “to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.” § 2702(1). Exempting Nations from federal gaming taxation in the same manner as States preserves the Nations’ sovereignty and avoids giving state gaming a competitive advantage that would interfere with the Nations’ ability to raise revenue in this manner.

II

Because nothing in the text, legislative history, or underlying policies of § 2719(d) clearly resolves the contradiction inherent in the section, it is appropriate to turn to canons of statutory construction. The Nations urge the Court to rely upon the Indian canon that “statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit,” Montana v. Blackfeet Tribe, 471 U. S., at 766, as a basis for deciding that the error in § 2719(d) lies in the restriction of the subclass, not in the specific listing of chapter 35. “[R]ooted in the unique trust relationship between the United States and the Indians,” County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226, 247 (1985), the Indian canon presumes congressional intent to assist its wards to overcome the disadvantages our country has placed upon them. Consistent with this purpose, the Indian canon applies to statutes as well as treaties: The form of the enactment does not change the presumption that Congress generally intends to benefit the Nations. Montana v. Blackfeet Tribe, supra; County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251 (1992). In these cases, because Congress has chosen gaming as a means of enabling the Nations to achieve self-sufficiency, the Indian canon rightly dictates that Congress should be presumed to have intended the Nations to receive more, rather than less, revenue from this enterprise.

Of course, the Indian canon is not the only canon with potential applicability in these cases. Also relevant is the taxation principle, that exemptions from taxation must be clearly expressed. United States Trust Co. v. Helvering, 307 U. S. 57, 60 (1939); see also ante, at 95. These canons pull in opposite directions, the former favoring the Nations’ preferred reading, and the latter favoring the Government’s.

This Court has repeatedly held that, when these two canons conflict, the Indian canon predominates. In Choate v. Trapp, 224 U. S. 665 (1912), a State attempted to rely on the taxation principle to argue that a treaty provision making land granted to Indians nontaxable was merely a bounty, capable of being withdrawn at any time. The Court acknowledged the taxation principle, responding:

“But in the Government’s dealings with the Indians, the rule is exactly the contrary. The construction, instead of being strict, is liberal; doubtful expressions, instead of being resolved in favor of the United States, are to be resolved in favor of [Indian nations.]” Id., at 674-675.

In Squire v. Capoeman, 351 U. S. 1, 3 (1956), the Federal Government had conveyed land to the Nations “ ‘free of all charge or encumbrance whatsoever.’ ” Although this phrase did not expressly mention nontaxability, the Court held that the language “might well be sufficient to include taxation,” id., at 7. Invoking the Indian canon, id., at 6-7, we found the Nations exempt.

Likewise, in McClanahan v. Arizona Tax Comm’n, 411 U. S. 164 (1973), this Court inferred an exemption from state taxation of property inside reservations from a treaty reserving lands for the exclusive use and occupancy of the Nations. In doing so, the Court noted: “It is true, of course, that exemptions from tax laws should, as a general rule, be clearly expressed. But we have in the past construed language far more ambiguous than this as providing a tax exemption for Indians.” Id., at 176 (citing Squire, supra, at 100).

As the purpose behind the Indian canon is the same regardless of the form of enactment, supra, at 99, there is no reason to alter the Indian canon’s relative strength where a statute rather than a treaty is involved. Cf. ante, at 95. The primacy of the Indian canon over the taxation principle should not be surprising, as this Court has also held that the general presumption supporting the legality of executive action must yield to the Indian canon, a “counterpresumption specific” to Indians. Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172, 194, n. 5 (1999).

This Court has failed to apply the Indian canon to extend tax exemptions to the Nations only when nothing in the language of the underlying statute or treaty suggests the Nations should be exempted. The Cherokee Tobacco, 11 Wall. 616, 618, 620 (1871) (finding no exemption for the Nations from language imposing taxes on certain “ ‘articles produced anywhere within the exterior boundaries of the United States’ ”); Choteau v. Burnet, 283 U. S. 691, 693-694 (1931) (finding no exemption in provisions “subject[ing] the income of ‘every individual’ to tax,” including “income ‘from any source whatever’ ”); Superintendent of Five Civilized Tribes v. Commissioner, 295 U. S. 418 (1935) (same); Mescalero Apache Tribe v. Jones, 411 U. S. 145, 155 (1973) (refusing to exempt the Nations from taxes on land use income based on language that “[o]n its face . . . exempts land and rights in land, not income derived from its use”). Mescalero also went further, suggesting that because of the taxation principle, the Court would refuse to find such an exemption absent “clear statutory guidance.” Id., at 156. Mescalero’s formulation is admittedly in tension with the Court’s precedents giving the Indian canon primacy over the taxation principle where statutory language is ambiguous. As Mescalero was decided on the same day as one of those very precedents, the unanimous decision in McClanahan v. Arizona Tax Comm’n, supra, however, it cannot have intended to alter the Court’s established practice.

Section 2719(d) provides an even more persuasive case for application of the Indian canon than any of our precedents. Here, the Court is not being asked to create out of vague language a tax exemption not specifically provided for in the statute. Instead, the Nations simply ask the Court to use the Indian canon as a tiebreaker between two equally plausible (or, in these cases, equally implausible) constructions of a troubled statute, one which specifically makes chapter 35’s tax exemption applicable to the Nations, and one which specifically does not. Breaking interpretive ties is one of the least controversial uses of any canon of statutory construction. See Eskridge, Frickey, & Garrett, Legislation and Statutory Interpretation, at 341 (“The weakest kind of substantive canon operates merely as a tiebreaker at the end of the interpretive analysis”).

Faced with the . unhappy choice of determining which part of a flawed statutory section is in error, I would thus rely upon the long-established Indian canon of construction and adopt the reading most favorable to the Nations.

      Justice Scalia and Justice Thomas join all but Part II-B of this opinion.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ADARAND CONSTRUCTORS, INC. v. MINETA, SECRETARY OF TRANSPORTATION, et al.
    No. 00-730.
    Argued October 31, 2001
    Decided November 27, 2001

      William Perry Pendley argued the cause and filed briefs for petitioner.

      Solicitor General Olson argued the cause for respondents. With him on the brief were Assistant Attorney General Boyd, Deputy Solicitor General Clement, Jeffrey A. Lam-ken, Mark L. Gross, Teresa Kwong, Paul M. Geier, Peter J. Plocki, Peter S. Smith, and Edward V. A. Kussy.

       Briefs of amici curiae urging reversal were filed for the Associated General Contractors of America, Inc., by John G. Roberts, Jr., and Michael E. Kennedy; for the Center for Individual Rights by Michael E. Rosman; for the Claremont Institute Center for Constitutional Jurisprudence by Edwin Meese III; for GEOD Corp. et al. by Martin S. Kaufman and Bris-coe R. Smith; and for the Pacific Legal Foundation et al. by John H. Find-ley and Sharon L. Browne.

      Briefs of amici curiae urging affirmance were filed for the City and County of Denver by Eileen Penner and J. Wallace Wortham, Jr.; for the Lawyers’ Committee for Civil Rights Under Law et al. by John A. Payton, Charles T. Lester, Jr., Norman Redlich, Barbara R. Arnwine, Thomas J. Henderson, Steven R. Shapiro, Christopher A. Hansen, Antonia Hernandez, Dennis C. Hayes, and Elliot M. Mincberg; for the NOW Legal Defense and Education Fund et al. by Martha F. Davis and Mitchell A. Lowenthal; for the Minority Business Enterprise Legal Defense and Education Fund, Inc., et al. by Bradley S. Phillips, Paul J. Watford, and Fred A Rowley, Jr.; for the NAACP Legal Defense and Educational Fund, Inc., by Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, James L. Cott, and Robert H. Stroup; for the National League of Cities et al. by Richard Ruda, James I. Crowley, and Robert Brauneis; for the Office of Communication of the United Church of Christ et al. by David Honig and Shelby D. Green; for the Women First National Legislative Committee et al. by Edward W. Correia; and for Senator Max Baucus et al. by Mr. Correia.

      Briefs of amici curiae were filed for the National Asian Pacific American Legal Consortium et al. by Mark A. Packman, Jonathan M. Cohen,
        and Vincent A Eng; for Social Science and Comparative Law Scholars by Clark D. Cunningham; for the Southeastern Legal Foundation, Inc., by Walter H. Ryland, and Valle Simms Dutcher; and for L. S. Lee, Inc., by Mr. Ryland.

   Per Curiam.

We granted certiorari to review for a second time whether the Court of Appeals was correct when it concluded that the Department of Transportation’s (DOT’s) Disadvantaged Business Enterprise (DBE) program is consistent with the constitutional guaranty of equal protection. But upon full briefing and oral argument we find that the current posture of this case prevents review of that important question. To address it would require a threshold inquiry into issues decided by the Court of Appeals but not presented in the petition for certiorari. We therefore dismiss the writ of cer-tiorari as improvidently granted.

Six years ago in Adarand Constructors, Inc. v. Peña, 515 U. S. 200 (1995) (Adarand I), we held that strict scrutiny governs whether race-based classifications violate the equal protection component of the Fifth Amendment’s Due Process Clause. See id., at 235 (“Federal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest”). We remanded for a determination whether the race-based components of the DOT’s DBE program could survive this standard of review.

On remand, the District Court for the District of Colorado found that no such race-based component then in operation could so survive. Adarand Constructors, Inc. v. Peña, 965 F. Supp. 1556 (1997). The Court of Appeals vacated the District Court’s judgment, reasoning that petitioner’s cause of action had been mooted because the Colorado Department of Transportation had recently certified petitioner as a DBE. Adarand Constructors, Inc. v. Slater, 169 F. 3d 1292, 1296-1297 (CA10 1999). Finding it not at all clear that petitioner’s certification was valid under DOT regulations, we again granted certiorari, reversed the Court of Appeals, and remanded for a determination on the merits consistent with Adarand I. Adarand Constructors, Inc. v. Slater, 528 U. S. 216 (2000) (per curiam).

Following the submission of supplemental briefs addressing statutory and regulatory changes that had occurred since the District Court’s 1997 judgment favorable to petitioner, the Court of Appeals affirmed in part and reversed in part. 228 F. 3d 1147 (CA10 2000). The Court of Appeals agreed with the District Court that the DOT’s DBE program was unconstitutional as it was administered in 1997. It further agreed that the automatic use of financial incentives to encourage the award of subcontracts to DBEs, as originally contemplated by the DOT’s Subcontractor Compensation Clause (SCC) program, was “unconstitutional under Ada-rand [7’s] strict standard of scrutiny.” Id., at 1187. The Secretary of Transportation never challenged these rulings and has since discontinued any and all use of the SCC program. Brief for Respondents 2,10,13,20, n. 3,23. See also 228 F. 3d, at 1194 (“The government maintains, and Adarand does not dispute, that the SCC, which spawned this litigation in 1989, is no longer in use”); Tr. of Oral Arg. 25 (“[SCCs] ha[ve been] abandoned in all respects, [they] have not been justified, and the United States Government is not employing [them]”).

The Court of Appeals next turned its attention to new regulations issued by the Secretary of Transportation under the Transportation Equity Act for the 21st Century (TEA-21), § 1101(b)(1), 112 Stat. 113. See 49 CFR pt. 26 (1999). These regulations pertain almost exclusively to use of federal funds for highway projects let by States and localities, which the Court of Appeals found to be the only “relevant” aspect of the DBE program under review. 228 F. 3d, at 1160. The Court of Appeals further noted that petitioner either lacked standing or had waived its right to challenge any other race-conscious program. Ibid. Finally, the Court of Appeals held that, by virtue of the new regulatory framework under which the DOT’S state and local DBE program now operates, that program passed constitutional muster under Adarand I. 228 F. 3d, at 1176-1187.

We again granted certiorari to decide whether the Court of Appeals misapplied the strict scrutiny standard announced in Adarand I. 532 U. S. 941 (2001). We anticipated that we would be able to review the same “relevant program” that was addressed by the Court of Appeals. But since certiorari was granted there has been a shift in the posture of the case that precludes such review.

Both parties agree that the Court of Appeals confined its opinion to the constitutionality of the DOT’S DBE program as it pertains to the use of federal funds for highway projects let by States and localities. See Brief for Petitioner 15-17; Brief for Respondents 19-23. It is clear from its opinion that the Court of Appeals considered no other programs; its strict scrutiny analysis relies almost exclusively on regulations designed to channel benefits, through States and localities, to firms owned by individuals who hold themselves out to be socially and economically disadvantaged. See 228 F. 3d, at 1176-1188. These regulations clearly permit the award of contracts based on race-conscious measures in jurisdictions where petitioner operates, and, as the Government concedes, provide petitioner with a potential basis for prospective relief, at least to the extent petitioner challenges them. Brief for Respondents 3.

It appeared at the certiorari stage that petitioner was indeed challenging these statutes and regulations. Nothing in the pétition for certiorari contested the Court of Appeals’ determination that petitioner lacked standing to challenge the statutes and regulations relating to any other race-conscious program. The petition for certiorari simply noted the Court of Appeals’ determination on this ground as a matter of fact, without further comment. Pet. for Cert. 4, nn. 2, 3.

Petitioner now asserts, however, that it is not challenging any part of DOT’S state and local procurement program. Instead, it claims to be challenging only the statutes and regulations that pertain to DOT’S direct procurement of highway construction on federal lands. Brief for Petitioner 12-17. But the statutes and regulations relating to direct procurement are quite different from the statutes and regulations reviewed by the Court of Appeals. In particular, while procurement by States and localities is governed by the regulations issued by the Secretary of Transportation under TEA-21, direct federal procurement is governed by the Small Business Act, including §§ 8(d)(4) — (6), as added by §211 of Pub. L. 95-507, 92 Stat. 1768, and as amended, 15 U. S. C. §§637(d)(4)-(6) (1994 ed. and Supp. V), and the regulations promulgated thereunder, 48 CFR pt. 19 (1998).

This shift in posture requires dismissal of the writ for two reasons. First, the Court of Appeals has not considered whether the various race-based programs applicable to direct federal contracting could satisfy strict scrutiny. See 228 F. 3d, at 1189, n. 35 (“There is no indication from any of the parties in their briefs or elsewhere that the particular requirements of paragraphs (4M6) of §8(d) are at issue in the instant lawsuit”) (citing 15 U. S. C. § § 687(d)(4) — (6) (1994 ed. and Supp. IV)); see also 228 F. 3d, at 1188-1189, n. 32 (“The parties have not addressed paragraph (4) of § 8(d) at all, and ... we do not address it in great detail”). The Government also has not addressed such programs in its brief on the merits. Brief for Respondents 38-50. Petitioner urges us to take on this task ourselves, and apply strict scrutiny in the first instance to a complex web of statutes and regulations without benefit of any lower court review. But in Adarand I, 515 U. S., at 238-239, we said that application of our strict scrutiny standard “should be addressed in the first instance by the lower courts.” We ordinarily “do not decide in the first instance issues not decided below.” National Collegiate Athletic Assn. v. Smith, 525 U. S. 459, 470 (1999). See also Glover v. United States, 531 U. S. 198, 205 (2001) (“In the ordinary course we do not decide questions neither raised nor resolved below”); Youakim v. Miller, 425 U. S. 231 (1976) (per curiam) (same).

Second, to reach the merits of any challenge to statutes and regulations relating to direct federal procurement would require a threshold examination of whether petitioner has standing to challenge such statutes and regulations. Petitioner has sought to show that it does have such standing, but this showing was not made (and no argument was ever advanced) until three weeks before oral argument. It was made then in a reply brief submitted with a lodging of voluminous evidence that has never been presented to any lower court. Reply Brief for Petitioner 1-9. The Government has responded with a lodging of its own, contending that no race-conscious measures are used for direct procurement in any jurisdiction in which petitioner does business. Whatever the merits of these competing positions, the petition for ceniorari nowhere disputed the Court of Appeals’ explicit holding that petitioner lacked standing to challenge the very provisions petitioner now asks us to review. 228 F. 3d, at 1160 (“Nor are we presented with any indication that Ada-rand has standing to challenge paragraphs (4)-(6) of 15 U. S. C. § 637(d)”).

We are obliged to examine standing sua sponte where standing has erroneously been assumed below. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 95 (1998) (“‘[I]f the record discloses that the lower court was without jurisdiction this court will notice the defect, although the parties make no contention concerning it’ ”) (quoting United States v. Corrick, 298 U. S. 435, 440 (1936)). But we do not examine standing sua sponte simply to reach an issue for which standing has been denied below — exactly what petitioner asks that we do here. See, e. g., Izumi Seimitsu Kogyo Kabushiki Kaisha v. U S. Philips Corp., 510 U. S. 27, 31-32 (1993) (per curiam) (discussing this Court’s Rule 14.1(a) and the “heavy presumption” against reaching threshold questions not presented in the petition for certio-rari (internal quotation marks and citations omitted)).

“Mindful that this is a court of final review and not first view,” Matsushita Elec. Industrial Co. v. Epstein, 516 U. S. 367, 399 (1996) (Ginsburg, J., concurring in part and dissenting in part), we thus decline to reach the merits of petitioner’s present challenge. Petitioner points out that this case presents questions of fundamental national importance calling for final resolution by this Court. But the importance of an issue should not distort the principles that control the exercise of our jurisdiction. To the contrary, “by adhering scrupulously to the customary limitations on our discretion regardless of the significance of the underlying issue, we promote respect ... for the Court’s adjudicatory process.” Adams v. Robertson, 520 U. S. 83, 92, n. 6 (1997) (per curiam) (internal quotation marks omitted). We also “ensure that we are not tempted to engage in ill-considered decisions of questions not presented in the petition.” Izumi Seimitsu, supra, at 34.

For the foregoing reasons, the writ of certiorari is dismissed as improvidently granted.

It is so ordered.

       We granted certiorari to review the following questions:
      “1. Whether the Court of Appeals misapplied the strict scrutiny standard in determining if Congress had a compelling interest to enact legislation designed to remedy the effects of racial discrimination?
      “2. Whether the United States Department of Transportation’s current Disadvantaged Business Enterprise program is narrowly tailored to serve a compelling governmental interest?” 532 U. S. 968 (2001).

       The Government states that a “Benchmark Study” completed by the Department of Commerce, see 64 Fed. Reg. 52806 (1999); 63 Fed. Reg. 35714 (1998), prohibits the use of race-conscious mechanisms for direct federal procurement of highway construction projects in any State other than Alabama, Mississippi, Louisiana, Arkansas, Kentucky, Tennessee, Texas, and Oklahoma, in none of which does petitioner conduct operations. Brief for Respondents 8-10, 22. At oral argument, the Government stated its view that the §§ 8(d)(4) — (6) programs in their current form would not meet the constitutional requirement of “narrow tailoring” if used in jurisdictions where the Benchmark Study has found no disparity suggesting discrimination or its continuing effects. Tr. of Oral Arg. 29-30.


author: Chief Justice Rehnquist Justice Souter,

text:
    UNITED STATES v. KNIGHTS
    No. 00-1260.
    Argued November 6, 2001
    Decided December 10, 2001

      Rehnquist, C. J., delivered the opinion for a unanimous Court. Sou-TER, J., filed a concurring opinion, post, p. 122.

      Malcolm, L. Stewart argued the cause for the United States. With him on the briefs were Solicitor General Olson, Assistant Attorney General Chertoff, and Deputy Solicitor General Dreeben.

      Hilary A. Fox argued the cause for respondent. With her on the brief was Barry J. Portman.

      Briefs of amici curiae urging reversal were filed for the State of California by Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass and Dane Gillette, Senior Assistant Attorneys General, and Laurence K. Sullivan, Supervising Deputy Attorney General; for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and for the Center for Community Interest by Andrew N. Vollmer and Steven Rosen.

      Briefs of amici curiae urging affirmance were filed for the California Public Defenders Association et al. by Kenneth I. Clayman; for the National Association of Criminal Defense Lawyers by John Wesley Hall, Jr., and Lisa B. Kemler; and for the Rutherford Institute by James Joseph Lynch, Jr., John W. Whitehead, and Steven H. Aden.

   Chief Justice Rehnquist

delivered the opinion of the Court.

A California court sentenced respondent Mark James Knights to summary probation for a drug offense. The probation order included the following condition: that Knights would “[s]ubmit his . . . person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer.” Knights signed the probation order, which stated immediately above his signature that “I HAVE. RECEIVED A COPY, READ AND UNDERSTAND THE ABOVE TERMS AND CONDITIONS OF PROBATION AND AGREE TO ABIDE BY SAME.” App. 49. In this case, we decide whether a search pursuant to this probation condition, and supported by reasonable suspicion, satisfied the Fourth Amendment.

Three days after Knights was placed on probation, a Pacific Gas & Electric (PG&E) power transformer and adjacent Pacific Bell telecommunications vault near the Napa County Airport were pried open and set on fire, causing an estimated $1.5 million in damage. Brass padlocks had been removed and a gasoline accelerant had been used to ignite the fire. This incident was the latest in more than 30 recent acts of vandalism against PG&E facilities in Napa County. Suspicion for these acts had long focused on Knights and his friend, Steven Simoneau. The incidents began after PG&E had filed a theft-of-services complaint against Knights and discontinued his electrical service for failure to pay his bill. Detective Todd Hancock of the Napa County Sheriff’s Department had noticed that the acts of vandalism coincided with Knights’ court appearance dates concerning the theft of PG&E services. And just a week before the arson, a sheriff’s deputy had stopped Knights and Simoneau near a PG&E gas line and observed pipes and gasoline in Simon-eau’s pickup truck.

After the PG&E arson, a sheriff’s deputy drove by Knights’ residence, where he saw Simoneau’s truck parked in front. The deputy felt the hood of the truck. It was warm. Detective Hancock decided to set up surveillance of Knights’ apartment. At about 3:10 the next morning, Simoneau exited the apartment carrying three cylindrical items. Detective Hancock believed the items were pipe bombs. Simoneau walked across the street to the bank of the Napa River, and Hancock heard three splashes. Simon-eau returned without the cylinders and drove away in his truck. Simoneau then stopped in a driveway, parked, and left the area. Detective Hancock entered the driveway and observed a number of suspicious objects in the truck: a Molotov cocktail and explosive materials, a gasoline can, and two brass padlocks that fit the description of those removed from the PG&E transformer vault.

After viewing the objects in Simoneau’s truck, Detective Hancock decided to conduct a search of Knights’ apartment. Detective Hancock was aware of the search condition in Knights’ probation order and thus believed that a warrant was not necessary. The search revealed a detonation cord, ammunition, liquid chemicals, instruction manuals on chemistry and electrical circuitry, bolt cutters, telephone pole-climbing spurs, drug paraphernalia, and a brass padlock stamped “PG&E.”

Knights was arrested, and a federal grand jury subsequently indicted him for conspiracy to commit arson, for possession of an unregistered destructive device, and for being a felon in possession of ammunition. Knights moved to suppress the evidence obtained during the search of his apartment. The District Court held that Detective Hancock had “reasonable suspicion” to believe that Knights was involved with incendiary materials. App. to Pet. for Cert. 30a. The District Court nonetheless granted the motion to suppress on the ground that the search was for “investigatory” rather than “probationary” purposes. The Court of Appeals for the Ninth Circuit affirmed. 219 F. 3d 1138 (2000). The Court of Appeals relied on its earlier decisions holding that the search condition in Knights’ probation order “must be seen as limited to probation searches, and must stop short of investigation searches.” Id., at 1142-1143 (citing United States v. Ooley, 116 F. 3d 370, 371 (CA9 1997)).

The Supreme Court of California has rejected this distinction and upheld searches pursuant to the California probation condition “whether the purpose of the search is to monitor the probationer or to serve some other law enforcement purpose.” People v. Woods, 21 Cal. 4th 668, 681, 981 P. 2d 1019, 1027 (1999), cert. denied, 529 U. S. 1023 (2000). We granted certiorari, 532 U. S. 1018 (2001), to assess the constitutionality of searches made pursuant to this common California probation condition.

Certainly nothing in the condition of probation suggests that it was confined to searches bearing upon probationary status and nothing more. The search condition provides that Knights will submit to a search “by any probation officer or law enforcement officer” and does not mention anything about purpose. App. 49. The question then is whether the Fourth Amendment limits searches pursuant to this probation condition to those with a “probationary” purpose.

Knights argues that this limitation follows from our decision in Griffin v. Wisconsin, 483 U. S. 868 (1987). Brief for Respondent 14. In Griffin, we upheld a search of a probationer conducted pursuant to a Wisconsin regulation permitting “any probation officer to search a probationer’s home without a warrant as long as his supervisor approves and as long as there are ‘reasonable grounds’ to believe the presence of contraband,” 483 U. S., at 870-871. The Wisconsin regulation that authorized the search was not an express condition of Griffin’s probation; in fact, the regulation was not even promulgated at the time of Griffin’s sentence. The regulation applied to all Wisconsin probationers, with no need for a judge to make an individualized determination that the probationer’s conviction justified the need for warrantless searches. We held that a State’s operation of its probation system presented a “special need” for the “exercise of supervision to assure that [probation] restrictions are in fact observed.” Id., at 875. That special need for supervision justified the Wisconsin regulation and the search pursuant to the regulation was thus reasonable. Id., at 875-880.

In Knights’ view, apparently shared by the Court of Appeals, a warrantless search of. a probationer satisfies the Fourth Amendment only if it is just like the search at issue in Griffin — i. e., a “special needs” search conducted by a probation officer monitoring whether the probationer is complying with probation restrictions. This dubious logic — that an opinion upholding the constitutionality of a particular search implicitly holds unconstitutional any search that is not like it — runs contrary to Griffin’s express statement that its “special needs” holding made it “unnecessary to consider whether” warrantless searches of probationers were otherwise reasonable within the meaning of the Fourth Amendment. Id., at 878,880.

We now consider that question in assessing the constitutionality of the search of Knights’ apartment. The Government, advocating the approach of the Supreme Court of California, see Woods, supra, contends that the search satisfied the Fourth Amendment under the “consent” rationale of cases such as Zap v. United States, 328 U. S. 624 (1946), and Schneckloth v. Bustamonte, 412 U. S. 218 (1973). In the Government’s view, Knights’ acceptance of the search condition was voluntary because he had the option of rejecting probation and going to prison instead, which the Government argues is analogous to the voluntary decision defendants often make to waive their right to a trial and accept a plea bargain.

We need not decide whether Knights’ acceptance of the search condition constituted consent in the Schneckloth sense of a complete waiver of his Fourth Amendment rights, however, because we conclude that the search of Knights was reasonable under our general Fourth Amendment approach of “examining the totality of the circumstances,” Ohio v. Robinette, 519 U. S. 33, 39 (1996), with the probation search condition being a salient circumstance.

The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U. S. 295, 300 (1999). Knights’ status as a probationer subject to a search condition informs both sides of that balance. “Probation, like incarceration, is ‘a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.’ ” Griffin, supra, at 874 (quoting G. Killinger, H. Kerper, & P. Cromwell, Probation and Parole in the Criminal Justice System 14 (1976)). Probation is “one point. . . on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service.” 483 U. S., at 874. Inherent in the very nature of probation is that probationers “do not enjoy/the absolute liberty to which every citizen is entitled.’” Ibid, (quoting Morrissey v. Brewer, 408 U. S. 471, 480 (1972)). Just as other punishments for criminal convictions curtail an offender’s freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.

The judge who sentenced Knights to probation determined that it was necessary to condition the probation on Knights’ acceptance of the search provision. It was reasonable to conclude that the search condition would further the two primary goals of probation — rehabilitation and protecting society from future criminal violations. The probation order clearly expressed the search condition and Knights was unambiguously informed of it. The probation condition thus significantly diminished Knights’ reasonable expectation of privacy.

In assessing the governmental interest side of the balance, it must be remembered that “the very assumption of the institution of probation” is that the probationer “is more likely than the ordinary citizen to violate the law.” Griffin, 483 U. S., at 880. The recidivism rate of probationers is significantly higher than the general crime rate. See U. S. Dept, of Justice, Office of Justice Programs, Bureau of Justice Statistics, Recidivism of Felons on Probation, 1986-89, pp. 1, 6 (Feb. 1992) (reporting that 43% of 79,000 felons placed on probation in 17 States were rearrested for a felony within three years while still on probation); U. S. Dept, of Justice, Office of Justice Programs, Bureau of Justice Statistics, Probation and Parole Violators in State Prison, 1991, p. 3 (Aug. 1995) (stating that in 1991, 23% of state prisoners were probation violators). And probationers have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may be subject to supervision and face revocation of probation, and possible incarceration, in proceedings in which the trial rights of a jury and proof beyond a reasonable doubt, among other things, do not apply, see Minnesota v. Murphy, 465 U. S. 420, 435, n. 7 (1984) (“[TJhere is no right to a jury trial before probation may be revoked”); 18 U. S. C. § 3583(e).

The State has a dual concern with a probationer. On the one hand is the hope that he will successfully complete probation and be integrated back into the community. On the other is the concern, quite justified, that he will be more likely to engage in criminal conduct than an ordinary member of the community. The view of the Court of Appeals in this case would require the State to shut its eyes to the latter concern and concentrate only on the former. But we hold that the Fourth Amendment does not put the State to such a choice. Its interest in apprehending violators of the criminal law, thereby protecting potential victims of criminal enterprise, may therefore justifiably focus on probationers in a way that it does'not on the ordinary citizen.

We hold that the balance of these considerations requires no more than reasonable suspicion to conduct a search of this probationer’s house. The degree of individualized suspicion required of a search is a determination of when there is a sufficiently high probability that criminal conduct is occurring to make the intrusion on the individual’s privacy interest reasonable. See United States v. Cortez, 449 U. S. 411, 418 (1981) (individualized suspicion deals “with probabilities”). Although the Fourth Amendment ordinarily requires the degree of probability embodied in the term “probable cause,” a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable. See, e.g., Terry v. Ohio, 392 U. S. 1 (1968); United States v. Brignoni-Ponce, 422 U. S. 873 (1975). Those interests warrant a lesser than probable-cause standard here. When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable.

The same circumstances that lead us to conclude that reasonable suspicion is constitutionally sufficient also render a warrant requirement unnecessary. See Illinois v. McArthur, 531 U. S. 326, 330 (2001) (noting that general or individual circumstances, including “diminished expectations of privacy,” may justify an exception to the warrant requirement).

Because our holding rests on ordinary Fourth Amendment analysis that considers all the circumstances of a search, there is no basis for examining official purpose. With the limited exception of some special needs and administrative search cases, see Indianapolis v. Edmond, 531 U. S. 32, 45 (2000), “we have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers.” Whren v. United States, 517 U. S. 806, 813 (1996).

The District Court found, and Knights concedes, that the search in this case was supported by reasonable suspicion. We therefore hold that the warrantless search of Knights, supported by reasonable suspicion and authorized by a condition of probation, was reasonable within the meaning of the Fourth Amendment. The judgment of the Court of Appeals is reversed, and the cause is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Souter,

concurring.

As this case was originally presented to us, the dispute centered on whether Knights’s agreement to the search, condition included in his terms of probation covered only those searches with a probation-related purpose, or rather extended to searches with an investigatory or law-enforcement purpose. At that time, the Government argued that Whren v. United States, 517 U. S. 806 (1996), precluded any en-quiry into the motives of the individual officers conducting the search. We now hold that law-enforcement searches of probationers who have been informed of a search condition are permissible upon individualized suspicion of criminal behavior committed during the probationary period, thus removing any issue of the subjective intention of the investí-gating officers from the case. I would therefore reserve the question whether Whren’s holding, that “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis,” id., at 813, should extend to searches based only upon reasonable suspicion.

       Hancock had seen a copy of the probation order when he was checking Knights’ file in the Sheriff’s Department office.

       Griffin was placed on probation in September 1980, 483 U. S., at 870, and the regulation was not promulgated until December 1981, id., at 871.

       The Wisconsin Supreme Court had held in Griffin that “probation diminishes a probationer’s reasonable expectation of privacy — so that a probation officer may, consistent with the Fourth Amendment, search a probationer’s home without a warrant, and with only ‘reasonable grounds’ (not probable cause) to believe that contraband is present.” Id., at 872.

       The Government sees our unconstitutional conditions doctrine as a limitation on what a probationer may validly consent to in a probation order. The Government argues that the search condition is not an unconstitutional condition because waiver of Fourth Amendment rights “directly furthers the State’s interest in the effective administration of its probation system.” Brief for United States 22.

       Under California law, a probation condition is invalid if it (1) has no relationship to the crime of which defendant was convicted; (2) relates to conduct which in itself is not criminal; and (3) requires or forbids conduct which is not reasonably related to future criminality. People v. Lent, 15 Cal. 3d 481, 485-486, 541 P. 2d 545, 548 (1975).

       We do not decide whether the probation condition so diminished, or completely eliminated, Knights’ reasonable expectation of privacy (or constituted consent, see supra, at 118) that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment. The terms of the probation condition permit such a search, but we need not address the constitutionality of a suspicionless search because the search in this case was supported by reasonable suspicion.