author: Mr. Justice Powell Mr. Justice Brennan, Mr. Justice Marshall,

text:
    UNITED STATES v. MILLER
    No. 74-1179.
    Argued January 12, 1976
    Decided April 21, 1976

      Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Blackmun, Rehnquist, and Stevens, JJ., joined. Brennan, J., post, p. 447, and Marshall, J., post, p. 455, filed dissenting opinions.

      Deputy Solicitor General Wallace argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Thornburgh, Sidney M. Glazer, and Ivan Michael Schaeffer.

      D. L. Bampey, Jr., by appointment of the Court, 422 U. S. 1054, argued the cause and filed a brief for respondent.
   Mr. Justice Powell

delivered the opinion of the Court.

Respondent was convicted of possessing an unregistered still, carrying on the business of a distiller without giving bond and with intent to defraud the Government of whiskey tax, possessing 175 gallons of whiskey upon which no taxes had been paid, and conspiring to defraud the United States of tax revenues. 26 U. S. C. §§ 5179, 5205, 5601 et seq.; 18 U. S. C. § 371. Prior to trial respondent moved to suppress copies of checks and other bank records obtained by means of allegedly defective subpoenas duces tecum served upon two banks at which he had accounts. The records had been maintained by the banks in compliance with the requirements of the Bank Secrecy Act of 1970, 84 Stat. 1114, 12 U. S. C. § 1829b (d).

The District Court overruled respondent’s motion to suppress, and the evidence was admitted. The Court of Appeals for the Fifth Circuit reversed on the ground that a depositor’s Fourth Amendment rights are violated when bank records maintained pursuant to the Bank Secrecy Act are obtained by means of a defective subpoena. It held that any evidence so obtained must be suppressed. Since we find that respondent had no pro-tectable Fourth Amendment interest in the subpoenaed documents, we reverse the decision below.

I

On December 18, 1972, in response to an informant’s tip, a deputy sheriff from Houston County, Ga., stopped a van-type truck occupied by two of respondent’s alleged co-conspirators. The truck contained distillery apparatus and raw material. On January 9, 1973, a fire broke out in a Kathleen, Ga., warehouse rented to respondent. During the blaze firemen and sheriff department officials discovered a 7,500-gallon-eapacity distillery, 175 gallons of non-tax-paid whiskey, and related paraphernalia.

Two weeks later agents from the Treasury Department’s Alcohol, Tobacco and Firearms Bureau presented grand jury subpoenas issued in blank by the clerk of the District Court, and completed by the United States Attorney’s office, to the presidents of the Citizens & Southern National Bank of Warner Robins and the Bank of Byron, where respondent maintained accounts. The subpoenas required the two presidents to appear on January 24, 1973, and to produce

“all records of accounts, i. e., savings, checking, loan or otherwise, in the name of Mr. Mitch Miller [respondent], 3859 Mathis Street, Macon, Ga. and/or Mitch Miller Associates, 100 Executive Terrace, Warner Robins, Ga., from October 1, 1972, through the present date [January 22, 1973, in the case of the Bank of Byron, and January 23, 1973, in the case of the Citizens & Southern National Bank of Warner Robins]

The banks did not advise respondent that the subpoenas had been served but ordered their employees to make the records available and to provide copies .of any documents the agents desired. At the Bank of Byron, an agent was shown microfilm records of the relevant account and provided with copies of one deposit slip and one or two checks. At the Citizens & Southern National Bank microfilm records also were shown to the agent, and he was given copies-of the records of respondent's account during the applicable period. These included all checks, deposit slips, two financial statements, and three monthly statements. The bank presidents were then told that it would not be necessary to appear in person before the grand jury.

The grand jury met on February 12, 1973, 19 days after the return date on the subpoenas. Respondent and four others were indicted. The overt acts alleged to have been committed in furtherance of the conspiracy included three financial transactions — the rental by respondent of the van-type truck, the purchase by respondent of radio equipment, and the purchase by respondent of a quantity of sheet metal and metal pipe. The record does not indicate whether any of the bank records were in fact presented to the grand jury. They were used in the investigation and provided “one or two" investigatory leads. Copies of the checks also were introduced at trial to establish the overt acts described above.

In his motion to suppress, denied by the District Court, respondent contended that the bank documents were illegally seized. It was urged that the subpoenas were defective because they were issued by the United States Attorney rather than a court, no return was made to a court, and the subpoenas were returnable on a date when the grand jury was not in session. The Court of Appeals reversed. 500 F. 2d 751 (1974). Citing the prohibition in Boyd v. United States, 116 U. S. 616, 622 (1886), against “compulsory production of a man’s private papers to establish a criminal charge against him,” the court held that the Government had improperly circumvented Boyd’s protections of respondent’s Fourth Amendment right against “unreasonable searches and seizures” by “first requiring a third party bank to copy all of its depositors’ personal checks and then, with an improper invocation of legal process, calling upon the bank to allow inspection and reproduction of those copies.” 500 F. 2d, at 757. The court acknowledged that the recordkeeping requirements of the Bank Secrecy Act had been held to be constitutional on their face in California Bankers Assn. v. Shultz, 416 U. S. 21 (1974), but noted that access to the records was to be controlled by “existing legal process.” See id., at 52. The subpoenas issued here were found not to constitute adequate “legal process.” The fact that the bank officers cooperated voluntarily was found to be irrelevant, for “he whose rights are threatened by the improper disclosure here was a bank depositor, not a bank official.” 500 F. 2d, at 758.

The Government contends that the Court of Appeals erred in three respects: (i) in finding that respondent had the Fourth Amendment interest necessary to entitle him to challenge the validity of the subpoenas duces tecum through his motion to suppress; (ii) in holding that the subpoenas were defective; and (iii) in determining that suppression of the evidence obtained was the appropriate remedy if a constitutional violation did take place.

We find that there was no intrusion into any area in which respondent had a protected Fourth Amendment interest and that the District Court therefore correctly denied respondent’s motion to suppress. Because we reverse the decision of the Court of Appeals on that ground alone, we do not reach the Government’s latter two contentions.

II

In Hoffa v. United States, 385 U. S. 293, 301-302 (1966), the Court said that “no interest legitimately protected by the Fourth Amendment” is implicated by governmental investigative activities unless there is an intrusion into a zone of privacy, into “the security a man relies upon when he places himself or his property within a constitutionally protected area.” The Court of Appeals, as noted above, assumed that respondent had the necessary Fourth Amendment interest, pointing to the language in Boyd v. United States, supra, at 622, which describes that Amendment’s protection against the “compulsory production of a man’s private papers.” We think that the Court of Appeals erred in finding the subpoenaed documents to fall within a protected zone of privacy.

On their face, the documents subpoenaed here are not respondent’s “private papers.” Unlike the claimant in Boyd, respondent can assert neither ownership nor possession. Instead, these are the business records of the banks. As we said in California Bankers Assn. v. Shultz, supra, at 48-49, “[blanks are . . . not . . . neutrals in transactions involving negotiable instruments, but parties to the instruments with a substantial stake in their continued availability and acceptance.” The records of respondent’s accounts, like “all of the records [which are required to be kept pursuant to the Bank Secrecy Act,] pertain to transactions to which the bank was itself a party.” Id., at 52.

Respondent argues, however, that the Bank Secrecy Act introduces a factor that makes the subpoena in this case the functional equivalent of a search and seizure of the depositor’s “private papers.” We have held, in California Bankers Assn. v. Shultz, supra, at 54, that the mere maintenance of records pursuant to the requirements of the Act “invade [s] no Fourth Amendment right of any depositor.” But respondent contends that the combination of the recordkeeping requirements of the Act and the issuance of a subpoena to obtain those records permits the Government to circumvent the requirements of the Fourth Amendment by allowing it to obtain a depositor’s private records without complying with the legal requirements that would be applicable had it proceeded against him directly. Therefore, we must address the question whether the compulsion embodied in the Bank Secrecy Act as exercised in this case creates a Fourth Amendment interest in the depositor where none existed before. This question was expressly reserved in California Bankers Assn., supra, at 53-54, and n. 24.

Respondent urges that he has a Fourth Amendment interest in the records kept by the banks because they are merely copies of personal records that were made available to the banks for a limited purpose and in which he has a reasonable expectation of privacy. He relies on this Court’s statement in Katz v. United States, 389 U. S. 347, 353 (1967), quoting Warden v. Hayden, 387 U. S. 294, 304 (1967), that “we have . . . departed from the narrow view” that “ 'property interests control the right of the Government to search and seize,’ ” and that a “search and seizure” become unreasonable when the Government’s activities violate “the privacy upon which [a person] justifiably reliefs].” But in Katz the Court also stressed that “[w]hat a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection.” 389 U. S., at 351. We must examine the nature of the particular documents sought to be protected in order to determine whether there is a legitimate “expectation of privacy” concerning their contents. Cf. Couch v. United States, 409 U. S. 322, 335 (1973).

Even if we direct our attention to the original checks and deposit slips, rather than to the microfilm copies actually viewed and obtained by means of the subpoena, we perceive no legitimate “expectation of privacy” in their contents. The checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business. The lack of any legitimate expectation of privacy concerning the information kept in bank records was assumed by Congress in enacting the Bank Secrecy Act, the expressed purpose of which is to require records to be maintained because they “have a high degree of usefulness in criminal, tax, and regulatory investigations and proceedings.” 12 U. S. C. § 1829b (a) (1). Cf. Couch v. United States, supra, at 335.

The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. United States v. White, 401 U. S. 745, 751-752 (1971). This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. Id., at 752; Hoffa v. United States, 385 U. S., at 302; Lopez v. United States, 373 U. S. 427 (1963).

This analysis is not changed by the mandate of the Bank Secrecy Act that records of depositors' transactions be maintained by banks. In California Bankers Assn. v. Shultz, 416 U. S., at 52-53, we rejected the contention that banks, when keeping records of their depositors' transactions pursuant to the Act, are acting solely as agents of the Government. But, even if the banks could be said to have been acting solely as Government agents in transcribing the necessary information and complying without protest with the requirements of the subpoenas, there would be no intrusion upon the depositors' Fourth Amendment rights. See Osborn v. United States, 385 U. S. 323 (1966); Lewis v. United States, 385 U. S. 206 (1966).

Ill

Since no Fourth Amendment interests of the depositor are implicated here, this case is governed by the general rule that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant, even if a criminal prosecution is contemplated at the time the subpoena is issued. California Bankers Assn. v. Shultz, supra, at 53; Donaldson v. United States, 400 U. S. 517, 537 (1971) (Douglas, J., concurring). Under these principles, it was firmly settled, before the passage of the Bank Secrecy Act, that an Internal Revenue Service summons directed to a third-party bank does not violate the Fourth Amendment rights of a depositor under investigation. See First National Bank of Mobile v. United States, 267 U. S. 576 (1925), aff’g 295 F. 142 (SD Ala. 1924). See also California Bankers Assn. v. Shultz, supra, at 53; Donaldson v. United States, supra, at 522.

Many banks traditionally kept permanent records of their depositors’ accounts, although not all banks did so and the practice was declining in recent years. By requiring that such records be kept by all banks, the Bank Secrecy Act is not a novel means designed to circumvent established Fourth Amendment rights. It is merely an attempt to facilitate the use of a proper and longstanding law enforcement technique by insuring that records are available when they are needed.

We hold that the District Court correctly denied respondent’s motion to suppress, since he possessed no Fourth Amendment interest that could be vindicated by a challenge to the subpoenas.

IV

Respondent contends not only that the subpoenas duces tecum directed against the banks infringed his Fourth Amendment rights, but that a subpoena issued to a bank to obtain records maintained pursuant to the Act is subject to more stringent Fourth Amendment requirements than is the ordinary subpoena. In making this assertion he relies on our statement in California Bankers Assn., supra, at 52, that access to the records maintained by banks under the Act is to be controlled by "existing legal process.”

In Oklahoma Press Pub. Co. v. Walling, 327 U. S. 186, 208 (1946), the Court said that “the Fourth [Amendment], if applicable [to subpoenas for the production of business records and papers], at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be 'particularly described,’ if also the inquiry is one the demanding agency is authorized by law to make and the materials specified are relevant.” See also United States v. Dionisio, 410 U. S. 1, 11-12 (1973). Respondent, citing United States v. United States District Court, 407 U. S. 297 (1972), in which we discussed the application of the warrant requirements of the Fourth Amendment to domestic security surveillance through electronic eavesdropping, suggests that greater judicial scrutiny, equivalent to that required for a search warrant, is necessary when a subpoena is to be used to obtain bank records of a depositor’s account. But in California Bankers Assn., 416 U. S., at 52, we emphasized only that access to the records was to be in accordance with “existing legal process.” There was no indication that a new rule was to be devised, or that the traditional distinction between a search warrant and a subpoena would not be recognized.

In any event, for the reasons stated above, we hold that respondent lacks the requisite Fourth Amendment interest to challenge the validity of the subpoenas.

V

The judgment of the Court of Appeals is reversed. The court deferred decision on whether the trial court had improperly overruled respondent’s motion to suppress distillery apparatus and raw material seized from a rented truck. We remand for disposition of that issue.

So ordered.

Mr. Justice Brennan,

dissenting.

The pertinent phrasing of the Fourth Amendment— “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” — is virtually in haec verba as Art. I, § 19, of the California Constitution— “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures and searches, shall not be violated.” The California Supreme Court has reached a conclusion under Art. I, § 19, in the same factual situation, contrary to that reached by the Court today under the Fourth Amendment. I dissent because in my view the California Supreme Court correctly interpreted the relevant constitutional language.

In Burrows v. Superior Court, 13 Cal. 3d 238, 529 P. 2d 590 (1974), the .question was whether bank statements or copies thereof relating to an accused’s bank accounts obtained by the sheriff and prosecutor without benefit of legal process, but with the consent of the bank, were acquired as a result of an illegal search and seizure. The California Supreme Court held that the accused had a reasonable expectation of privacy in his bank statements and records, that the voluntary relinquishment of such records by the bank at the request of the sheriff and prosecutor did not constitute a valid consent by the accused, and that the acquisition by the officers of the records therefore was the result of an illegal search and seizure. In my view the same conclusion, for the reasons stated by the California Supreme Court, is compelled in this case under the practically identical phrasing of the Fourth Amendment. Addressing the threshold question whether the accused's right of privacy was invaded, and relying in part on the decision of the Court of Appeals in this case, Mr. Justice Mosk stated in his excellent opinion for a unanimous court:

“It cannot be gainsaid that the customer of a bank expects that the documents, such as checks, which he transmits to the bank in the course of his business operations, will remain private, and that such an expectation is reasonable. The prosecution concedes as much, although it asserts that this expectation. is not constitutionally cognizable. Representatives of several banks testified at the suppression hearing that information in their possession regarding a customer’s account is deemed by them to be confidential.
“In the present case, although the record establishes that copies of petitioner’s bank statements rather than of his checks were provided to the officer, the distinction is not significant with relation to petitioner’s expectation of privacy. That the bank alters the form in which it records the information transmitted to it by the depositor to show the receipt and disbursement of money on a bank statement does not diminish the depositor’s anticipation of privacy in the matters which he confides to the bank. A bank customer’s reasonable expectation is that, absent compulsion by legal process, the matters he reveals to the bank will be utilized by the bank only for internal banking purposes. Thus, we hold petitioner had a reasonable expectation that the bank would maintain the confidentiality of those papers which originated with him in check form and of the bank statements into which a record of those same checks had been transformed pursuant to internal bank practice.
“The People assert that no illegal search and seizure occurred here because the bank voluntarily provided the statements to the police, and the bank rather than the police conducted the search of its records for papers relating to petitioner’s accounts. If, as we conclude above, petitioner has a reasonable expectation of privacy in the bank statements, the voluntary relinquishment of such records by the bank at the request of the police does not constitute a valid consent by this petitioner. ... It is not the right of privacy of the bank but of the petitioner which is at issue, and thus it would be untenable to conclude that the bank, a neutral entity with no significant interest in the matter, may validly consent to an invasion of its depositors’ rights. However, if the bank is not neutral, as for example where it is itself a victim of the defendant’s suspected wrongdoing, the depositor’s right of privacy will not prevail.
“Our rationale is consistent with the recent decision of United States v. Miller (5th Cir. 1974) 500 F. 2d 751. In Miller, the United States Attorney, without the defendant’s knowledge, issued subpoenas to two banks in which the defendant maintained accounts, ordering the production of 'all records of accounts’ in the name of the defendant. The banks voluntarily provided the government with copies of the defendant’s checks and a deposit slip; these items were introduced into evidence at the trial which led to his conviction. The circuit court reversed the conviction. It held that the defendant’s rights under the Fourth Amendment were violated by the search because the subpoena was issued by the United States Attorney rather than by a court or grand jury, and the bank's voluntary compliance with the subpoena was irrelevant since it was the depositor’s right to privacy which was threatened by the disclosure.
“We hold that any bank statements or copies thereof obtained by the sheriff and prosecutor without the benefit of legal process were acquired as the result of an illegal search and seizure (Cal. Const., art. I, § 13), and that the trial court should have granted the motion to suppress such documents.
“The underlying dilemma in this and related cases is that the bank, a detached and disinterested entity, relinquished the records voluntarily. But that circumstance should not be crucial. For all practical purposes, the disclosure by individuals or business firms of their financial affairs to a bank is not entirely volitional, since it is impossible to participate in the economic life of contemporary society without maintaining a bank account. In the course of such dealings, a depositor reveals many aspects of his personal affairs, opinions, habits and associations. Indeed, the totality of bank records provides a virtual current biography. While we are concerned in the present case only with bank statements, the logical extension of the contention that the bank’s ownership of records permits free access to them by any police officer extends far beyond such statements to checks, savings, bonds, loan applications, loan guarantees, and all papers which the customer has supplied to the bank to facilitate the conduct of his financial affairs upon the reasonable assumption that the information would remain confidential. To permit a police officer access to these records merely upon his request, without any judicial control as to relevancy or other traditional requirements of legal process, and to allow the evidence to be used in any subsequent criminal prosecution against a defendant, opens the door to a vast and unlimited range of very real abuses of police power.
“Cases are legion that condemn violent searches and invasions of an individual’s right to the privacy of his dwelling. The imposition upon privacy, although perhaps not so dramatic, may be equally devastating when other methods are employed. Development of photocopying machines, electronic computers and other sophisticated instruments have accelerated the ability of government to intrude into areas which a person normally chooses to exclude from prying eyes and inquisitive minds. Consequently judicial interpretations of the reach of the constitutional protection of individual privacy must keep pace with the perils created by these new devices.” 13 Cal. 3d, at 243-248, 529 P. 2d, at 593-596 (footnote omitted).

The California Supreme Court also addressed the question of the relevance of California Bankers Assn. v. Shultz, 416 U. S. 21 (1974). In my view, for the reasons stated in Burrows, the decision of the Court of Appeals under review today, is in no way inconsistent with California Bankers. The California Supreme Court said:

“[California Bankers] held, in a six-three decision, that the bank’s rights under the Fourth Amendment were not abridged by the regulation, and that the depositor plaintiffs lacked standing to challenge the reporting requirement because there was no showing that they engaged in the type of transaction to which the regulation referred.
“The concurring views of two justices who provided the necessary votes to create a majority are of particular interest. Justice Powell’s opinion, joined by Justice Blackmun [416 U. S., at 78] makes clear that a significant extension of the reporting requirement would pose substantial constitutional questions, and that concurrence with the majority was based upon the provisions of the act as narrowed by the regulations. He wrote, 'In their full reach, the reports apparently authorized by the open-ended language of the Act touch upon intimate areas of an individual’s personal affairs. Financial transactions can reveal much about a person’s activities, associations, and beliefs. At some point, governmental intrusion upon these areas would implicate legitimate expectations of privacy. Moreover, the potential for abuse is particularly acute where, as here, the legislative scheme permits access to this information without invocation of the judicial process. In such instances, the important responsibility for balancing societal and individual interests is left to unreviewed executive discretion, rather than the scrutiny of a neutral magistrate. United States v. United States District Court, 407 U. S. 297, 316— 317.’ [416 U. S., at 78-79.]
“Justices Douglas and Marshall dissented on the ground that the act violated the Fourth Amendment. Justice Brennan also filed a dissent, stating that the recordkeeping and reporting requirements of the act constituted an impermissibly broad grant of power to the Secretary.
“. . . [T]he only federal case decided after Shultz and directly confronting the issue of the depositor’s rights is entirely consistent with the views we have set forth above. . . . Miller holds that Shultz may not be interpreted as 'proclaiming open season on personal bank records’ or as permitting the government to circumvent the Fourth Amendment by first requiring banks to copy their depositors’ checks and then calling upon the banks to allow inspection of those copies without appropriate legal process.” 13 Cal. 3d, at 246-247, 529 P. 2d, at 595-596 (footnote omitted).

I would therefore affirm the judgment of the Court of Appeals. I add only that Burrows strikingly illustrates the emerging trend among high state courts of relying upon state constitutional protections of individual liberties — protections pervading counterpart provisions of the United States Constitution, but increasingly being ignored by decisions of this Court. For the most recent examples in this Court, but only in the privacy and Fourth Amendment areas, see, e. g., Kelley v. Johnson, ante, p. 238; Doe v. Commonwealth’s Atty., post, p. 901; Paul v. Davis, 424 U. S. 693 (1976); United States v. Watson, 423 U. S. 411 (1976).

Mr. Justice Marshall,

dissenting.

In California Bankers Assn. v. Shultz, 416 U. S. 21 (1974), the Court upheld the constitutionality of the recordkeeping requirements of the Bank Secrecy Act. 12 U. S. C. § 1829b (d). I dissented, finding the required maintenance of bank customers’ records to be a seizure within the meaning of the Fourth Amendment and unlawful in the absence of a warrant and probable cause. While the Court in California Bankers Assn. did not then purport to decide whether a customer could later challenge the bank’s delivery of his records to the Government pursuant to subpoena, I warned:

“[I]t is ironic that although the majority deems the bank customers’ Fourth Amendment claims premature, it also intimates that once the bank has made copies of a customer’s checks, the customer no longer has standing to invoke his Fourth Amendment rights when a demand is made on the bank by the Government for the records. ... By accepting the Government’s bifurcated approach to the recordkeeping requirement and the acquisition of the records, the majority engages in a hollow charade whereby Fourth Amendment claims are to be labeled premature until such time as they can be deemed too late.” 416 U. S., at 97.

Today, not surprisingly, the Court finds respondent’s claims to be made too late. Since the Court in Califor nia Bankers Assn. held that a bank, in complying with the requirement that it keep copies of the checks written by its customers, “neither searches nor seizes records in which the depositor has a Fourth Amendment right/' id., at 54, there is nothing new in today’s holding that respondent has no protected Fourth Amendment interest in such records. A fortiori, he does not have standing to contest the Government’s subpoena to the bank. Alderman v. United States, 394 U. S. 165 (1969).

I wash my hands of today’s extended redundancy by the Court. Because the recordkeeping requirements of the Act order the seizure of customers’ bank records without a warrant and probable cause, I believe the Act is unconstitutional and that respondent has standing to raise that claim. Since the Act is unconstitutional, the Government cannot rely on records kept pursuant to it in prosecuting bank customers. The Government relied on such records in this case and, because of that, I would affirm the Court of Appeals’ reversal of respondent's conviction. I respectfully dissent.

       The Fourth Amendment implications of Boyd as it applies to subpoenas duces tecum have been undercut by more recent cases. Fisher v. United States, ante, at 407-409. See infra, at 445-446.

       Respondent appears to contend that a depositor’s Fourth Amendment interest comes into play only when a defective subpoena is used to obtain records kept pursuant to the Act. We see no reason why the existence of a Fourth Amendment interest turns on whether the subpoena is defective. Therefore, we do not limit our consideration to the situation in which there is an alleged defect in the subpoena served on the bank.

       It is not clear whether respondent refers to attempts to obtain private documents through a subpoena issued directly to the depositor or through a search pursuant to a warrant. The question whether personal business records may be seized pursuant to a valid warrant is before this Court in No. 74-1646, Andresen v. Maryland, cert. granted, 423 U. S. 822.

       We do not address here the question of evidentiary privileges, such as that protecting communications between an attorney and his client. Cf. Fisher v. United States, ante, at 403-405.

       Nor did the banks notify respondent, a neglect without legal consequences here, however unattractive it may be.

       Respondent does not contend that the subpoenas infringed upon his First Amendment rights. There was no blanket reporting requirement of the sort we addressed in Buckley v. Valeo, 424 U. S. 1, 60-84 (1976), nor any allegation of an improper inquiry into protected associational activities of the sort presented in Eastland v. United States Servicemen’s Fund, 421 U. S. 491 (1975).
      We are not confronted with a situation in which the Government, through “unreviewed executive discretion,” has made a wide-ranging inquiry that unnecessarily "touch[es] upon intimate areas of an individual’s personal affairs.” California Bankers Assn. v. Shultz, 416 U. S., at 78-79 (Powell, J., concurring). Here the Government has exercised its powers through narrowly directed subpoenas duces tecum subject to the legal restraints attendant to such process. See Part IV, infra.

       This case differs from Burrows v. Superior Court, 13 Cal. 3d 238, 529 P. 2d 590 (1974), relied on by Mr. Justice Brennan in dissent, in that the bank records of respondent’s accounts were furnished in response to “compulsion by legal process” in the form of subpoenas duces tecum. The court in Burrows found it “significant . . . that the bank [in that case) provided the statements to the police in response to an informal oral request for information.” Id., at 243, 529 P. 2d, at 593.

       A subpoena duces tecum issued to obtain records is subject to nó more stringent Fourth Amendment requirements than is the ordinary subpoena. A search warrant, in contrast, is issuable only pursuant to prior judicial approval and authorizes Government officers to seize evidence without requiring enforcement through the courts. See United States v. Dionisio, 410 U. S. 1, 9-10 (1973).

       There is no occasion for us to address whether the subpoenas complied with the requirements outlined in Oklahoma Press Pub. Co. v. Walling, 327 U. S. 186 (1946). The banks upon which they were served did not contest their validity.

       The expectation of privacy relied upon by respondent to support his Fourth Amendment claim is similar to that rejected as to similar documents in Couch v. United States, 409 U. S. 322 (1973). But in Couch the taxpayer had delivered the documents to her accountant for preparation of income tax .returns “knowing that mandatory disclosure of much of the information therein is required in an income tax return.” Id., at 335; see id., at 337 (Brennan, J., concurring). In contrast, in the instant case the banks were obliged only to respond to lawful process, California Bankers Assn. v. Shultz, 416 U. S. 21, 52-54 (1974), and had no obligation to disclose the information voluntarily. The expectation of privacy asserted in Fisher v. United States, ante, p. 391, is distinguishable on similar grounds.

       The Court distinguishes Burrows on the ground that it involved no legal process, while the instant case involves legal process in the form of subpoenas duces tecum. Ante, at 445 n. 7. But the Court also states that the Fourth Amendment issue does not turn on whether the subpoenas were defective. Ante, at 441 n. 2.
      In any event, for present purposes I would accept the Court of Appeals’ conclusion that the subpoenas in this case were defective. Moreover, although not relied upon by the Court of Appeals, neither the bank nor the Government notified respondent of the disclosure of his records to the Government. In my view, the absence of such notice is not just “unattractive," ante, at 443 n. 5; a fatal constitutional defect inheres in a process that omits provision for notice to the bank customer of an invasion of his protected Fourth Amendment interest.

       I continue to believe that the reporting and recordkeeping requirements of the Bank Secrecy Act are unconstitutional. California Bankers Assn. v. Shultz, 416 U. S., at 91 (Brennan, J., dissenting). But I disagree with the Court’s reasoning in this case even assuming the constitutionality of the Act, and therefore it is unnecessary for me to rely on the infirmities inherent in the Act.

         See, e. g., cases cited in Baxter v. Palmigiano, ante, at 339, and n. 10 (Brennan, J., dissenting); Michigan v. Mosley, 423 U. S. 96, 120-121 (1975) (Brennan, J., dissenting). See also Wilkes, The New Federalism in Criminal Procedure: State Court Evasion of the Burger Court, 62 Ky. L. J. 421 (1974); Wilkes, More on the New Federalism in Criminal Procedure, 63 Ky. L. J. 873 (1975); Falk, The State Constitution: A More Than “Adequate” Nonfederal Ground, 61 Calif. L. Rev. 273 (1973); Project Report: Toward an Activist Role for State Bills of Rights, 8 Harv. Civ. Rights-Civ. Lib. L. Rev. 271 (1973). In the past, it might have been safe for counsel to raise only federal constitutional issues in state courts, but the risks of not raising state-law questions are increasingly substantial, as revealed by a colloquy during argument in Michigan v. Mosley, supra:

      “QUESTION: Why can’t you argue all of this as being contrary to the law and the Constitution of the State of Michigan?
      “MR. ZIEMBA: I can because we have the same provision in the Michigan Constitution of 1963 as we have in the Fifth Amendment of the Federal Constitution, certainly.
      “QUESTION: Well, you argued the whole thing before.
      “MR. ZIEMBA: In the Court of Appeals?
      “QUESTION: Yes.
      "MR. ZIEMBA: I really did not touch upon — I predicated my entire argument on the Federal Constitution, I must admit that. I did not mention the equivalent provision of the Michigan Constitution of 1963, although I could have. And I may assure this Court that at every opportunity in the future, I shall.
      “[Laughter.]
      “QUESTION: But you hope you don’t have that opportunity in this case.
      “MR. ZIEMBA: That’s right.” Tr. of Oral Arg. 43-44 (O. T. 1975, No. 74-653).
      It would be unwise for counsel to rely on state courts to consider state-law questions sua sponte. But see State v. Johnson, 68 N. J. 349, 346 A. 2d 66 (1975).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    NEW YORK CIVIL SERVICE COMMISSION et al. v. SNEAD
    No. 75-805.
    Decided April 26, 1976
   Per Curiam.

A three-judge District Court was convened in response to appellee’s complaint alleging that N. Y. Civil Service Law § 72 (1969), governing leave of absence for mentally unfit civil service employees, denied her the procedural due process guaranteed her by the Fourteenth Amendment of the United States Constitution. Joined as defendants in her action, which sought both declaratory and injunctive relief, were the appellants Civil Service Commission of the State of New York and its members, and the city of New York.

The District Court sustained appéllee’s federal constitutional claims, and enjoined the defendants from taking any action under the challenged statutory provision, and also ordered that appellee be reinstated in her civil service position and given backpay by the city of New York. The city has not appealed from the judgments.

Appellee, in addition to the previously described allegations, also asserted in her complaint that the city of New York in suspending her had not followed the procedures set forth in § 72. She particularly alleged that the doctor who examined her had not been selected in the manner prescribed by that statute. Appellants have not denied this allegation and, indeed, now acknowledge that the state law was not followed. The record therefore now establishes that the statutory procedure which appellee challenged has not been applied to her. It follows that she may have had a claim under state law against the city of New York; she may indeed have had a claim against the city of New York based on the procedural guarantees of the Fourteenth Amendment by reason of the procedure which the city in fact followed in suspending her. Since the city has not appealed, we have no occasion to consider any aspect of her claim against it, other than to say that neither of the claims just described would authorize the convening of the three-judge District Court under 28 U. S. C. § 2281. Phillips v. United States, 312 U. S. 246, 253 (1941).

“In so far as it is alleged that the assessments are void because unauthorized by the Arizona statute, the injunction sought is obviously not upon the ground of the unconstitutionality of the state statute as tested by the Federal Constitution.” Ex parte Bransford, 310 U. S. 354, 358 (1940).

Stripped of these related contentions, appellee’s claim against appellant state Civil Service Commission amounts to a request for a determination of the constitutionality of a statute which, while administered by the Commission has never in fact been properly applied by the Commission or indeed by the city of New York to her. Since the record now makes it clear that she has no standing to assert such a challenge, her complaint as to the constitutionality of § 72 should be dismissed. See Hagans v. Lavine, 415 U. S. 528 (1974).

Appellee asserted no claim against appellant Civil Service Commission and its members other than her constitutional claim. On their appeal, therefore, the judgment of the District Court as to them is vacated, and the case is remanded with instructions to dismiss ap-pellee’s complaint insofar as it sought relief against them.

So ordered.

Mr. Justice Brennan, Mr. Justice White, Mr. Justice Marshall, and Mr. Justice Blackmun would affirm without hearing oral argument.


author: Per Curiam. Mr. Justice Rehnquist,

text:
    NATIONAL BANK OF NORTH AMERICA v. ASSOCIATES OF OBSTETRICS AND FEMALE SURGERY, INC., et al.
    No. 75-1106.
    Decided April 26, 1976
   Per Curiam.

The petitioner is a national banking association with its principal place of business in New York. It has no offices or agents in Utah and does not regularly conduct business in that State. The respondent Associates of Obstetrics brought a breach-of-contract action against the petitioner in a Utah state court, seeking damages on the ground that the petitioner had induced the respondent to lend a large sum of money to a Utah corporation on the representation that the loan would be protected and that the petitioner had defaulted on this agreement. The petitioner moved to dismiss the complaint on the basis of the venue provision of the National Bank Act, Rev. Stat. § 5198, 12 U. S. C. § 94. That section provides that venue for actions against a national banking association shall lie “in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.” After the Utah trial court granted the petitioner’s motion, the respondent filed an amended complaint alleging that the petitioner had waived the protection of § 94 by making a loan to the Utah corporation and seeking to place that corporation into bankruptcy in a Federal District Court in Utah. The state trial court denied a motion to dismiss the amended complaint and the Utah Supreme Court affirmed, holding that the venue provision of the National Bank Act is “permissive and not exclusive,” Associates of Obstetrics v. Apollo Productions, Inc., 542 P. 2d 1079, 1080.

In Mercantile Nat. Bank v. Langdeau, 371 U. S. 555 (1963), and Michigan Nat. Bank v. Robertson, 372 U. S. 591 (1963), this Court held that the provision in §94 concerning venue in state, county, or municipal courts is not permissive, but mandatory, and, therefore, “that national banks may be sued only in those state courts in the county where the banks are located.” 371 U. S., at 561. Accordingly, we grant the petition for certiorari and vacate the judgment of the Utah Supreme Court. Since that court did not reach the respondent’s contention that the petitioner had waived the provisions of § 94, the case is remanded for a determination of that issue. See Michigan Nat. Bank v. Robertson, supra, at 594.

It is so ordered.

Mr. Justice Rehnquist,

concurring.

Charlotte Nat. Bank v. Morgan, 132 U. S. 141 (1889), recognized that the exemption of national banking associations from suit in counties or cities other than those in which they were located was a personal privilege of the associations which could be waived by them. Id., at 145. This exception to the otherwise mandatory nature of this, venue limitation has been carried forward in the current recodification of the federally created privilege. Michigan Nat. Bank v. Robertson, 372 U. S. 591, 594 (1963). In Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U. S. 165 (1939), the Court held that by designating an agent for service of process within a State, a corporation gave its consent to be sued in federal court within that State notwithstanding the provisions of the predecessor to 28 U. S. C. § 1391 (c), which accorded defendants in federal courts a privilege regarding venue essentially equivalent to that found in 12 U. S. C. § 94. I see no reason for concluding that the venue privilege extended by § 94 is of a different nature from that contained in § 1391, or that it may not be similarly waived by the conduct of a national banking association. Thus, I believe Neirbo establishes that petitioner National Bank could be deemed to have consented to being sued in Utah by providing an agent for service of process in that State or otherwise qualifying to do business therein according to Utah law. The record before us does not reveal whether such facts may exist in this case, however, and the Utah courts apparently engaged in no inquiry along these lines. I therefore agree with the Court’s decision to remand this case to the Utah court in order that it can examine whether petitioner may have waived the privilege afforded it by § 94.

      The respondent also argues that § 94 does not apply because this action is local in nature. See Casey v. Adams, 102 U. S. 66 (1880). This argument is based on the fact that a loan was made by the petitioner to a Utah corporation and that the petitioner has claimed a security interest in the assets of that corporation in a bankrupcy petition. But the Robertson decision established that such factors do not bring a case within the local-action exception to § 94 carved out by Casey v. Adams, supra. See 372 U. S., at 593-594.


author: Me. Justice Rehnquist

text:
    MOE, SHERIFF, et al. v. CONFEDERATED SALISH AND KOOTENAI TRIBES OF THE FLATHEAD RESERVATION et al.
    No. 74-1656.
    Argued January 20, 1976
    Decided April 27, 1976

      RehNquist, J., delivered the opinion for a unanimous Court.

      Sam E. Haddon, Special Assistant Attorney General of Montana, argued the cause for appellants in No. 74-1656 and appellees in No. 75-50. With him on the briefs were Robert L. Woodahl, Attorney General, and Jean A. Turnage, Special Assistant Attorney General.

      Richard A. Baenen argued the cause and filed a brief for appellees in No. 74 — 1656 and appellants in No. 75-50.

      Together with No. 75-50, Confederated Salish and Kootenai Tribes of the Flathead Reservation et al. v. Moe, Sheriff, et al., also on appeal from the same court.

      Briefs of amici curiae were filed by Slade Gorton, Attorney General, and Richard H. Holmquist, Assistant Attorney General, for the State of Washington; and by Michael Taylor for the Quinault Indian Nation.

   Me. Justice Rehnquist

delivered the opinion of the Court.

We are called upon in these appeals to resolve several questions arising out of a conflict between the asserted taxing power of the State of Montana and the immunity claimed by the Confederated Salish and Kootenai Tribes (Tribe) and its members living on the tribal reservation. Convened as a three-judge court, the District Court for the District of Montana considered separate attacks on the State’s cigarette sales and personal property taxes as applied to reservation Indians. After finding that the suits were not barred by the prohibition of 28 U. S. C. § 1341, the District Court entered final judgments which, with one exception, sustained the Tribe's challenges, and from which the State has appealed (No. 74-1656). The Tribe has cross-appealed from that part of the judgments upholding tax jurisdiction over on-reservation sales of cigarettes by members of the Tribe to non-Indians. We noted probable jurisdiction under 28 U. S. C. § 1253 and consolidated the appeal and cross-appeal. 423 U. S. 819 (1975). Concluding that the District Court had the power to grant injunctive relief in favor of the Tribe, and that it was correct on the merits, we affirm in both cases.

I

In 1855 an expanse of land stretching across the Bitter Root River Valley and within the then Territory of Washington was reserved for “the use and occupation” of the “confederated tribes of the Flathead, Kootenay, and Upper Pend d’Oreilles Indians,” by the Treaty of Hell Gate, which in 1859 was ratified by the Senate and proclaimed by President Buchanan. 12 Stat. 975. Slightly over half of its 1.25 million acres is now owned in fee, by both Indians and non-Indians; most of the remaining half is held in trust by the United States for the Tribe. Approximately 50% of the Tribe’s current membership of 5,749 resides on the reservation and in turn composes 19% of the total reservation population. Embracing portions of four Montana counties — Lake, Sanders, Missoula, and Flathead — the present reservation was generally described by the District Court:

“The Flathead Reservation is a well-developed agricultural area with farms, ranches and communities scattered throughout the inhabited portions of the Reservation. While some towns have predominantly Indian sectors, generally Indians and non-Indians live together in integrated communities. Banks, businesses and professions on the Reservation provide services to Indians and non-Indians alike.
“As Montana citizens, members of the Tribe are eligible to vote and do vote in city, county and state elections. Some hold elective and appointed state and local offices. All services provided by the state and local governments are equally available to Indians and non-Indians. The only schools on the Reservation are those operated by school districts of the State of Montana. The State and local governments have built and maintain a system of state highways, county roads and streets on the Reservation which are used by Indians and non-Indians without restriction.” 392 F. Supp. 1297, 1313 (1975).

Joseph Wheeler, a member of the Tribe, leased from it two tracts of trust land within the reservation whereon he operated retail “smoke shops.” Deputy sheriffs arrested Wheeler and an Indian employee for failure to possess a cigarette retailer’s license and for selling non-tax-stamped cigarettes, both misdemeanors under Montana law. These individuals, joined by the Tribe and the tribal chairmen, then sued in the District Court for declaratory and injunctive relief against the State’s cigarette tax and vendor-licensing statutes as applied to tribal members who sold cigarettes within the reservation. That court by a divided vote held that our decision in McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164 (1973), barred Montana’s efforts to impose its cigarette tax statutes on the Tribe’s retail cigarette sales with one exception: it may require a precollection of the tax imposed by law upon the non-Indian purchaser of the cigarettes.

In a later action, the Tribe and four enrolled members, all residents of the reservation, challenged Montana’s statutory scheme for assessment and collection of personal property taxes, in particular the imposition of such taxes on motor vehicles owned by tribal members residing on the reservation. The District Court, again by a divided vote, found its earlier decision interpreting Mc-Clanahan controlling in the Tribe’s favor. While recognizing, as did the Tribe, that a fee required for registration and issuance of state license plates for a motor vehicle could be exacted from Indians residing on the reservation, the court held that the additional personal property tax which was likewise made a condition precedent for lawful registration of the vehicle could not be imposed on reservation Indians.

II

The important threshold question in both cases is whether the District Court was prohibited from entertaining jurisdiction over these suits to restrain Montana’s taxing authority, inasmuch as Congress has provided that

“[t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 U. S. C. § 1341.

By enacting this jurisdictional rule, Congress gave explicit sanction to the pre-existing federal equity practice: because interference with a State’s internal economy is inseparable from a federal action to restrain state taxation,

“ 'the mere illegality or unconstitutionality of a state . . . tax is not in itself a ground for equitable relief in the courts of the United States. If the remedy at law is plain, adequate, and complete, the aggrieved party is left to that remedy in the state courts, from which the cause may be brought to this Court for review if any federal question be involved.’ Matthews v. Rodgers, [284 U. S. 521, 525-526 (1932)].” Great Lakes Co. v. Huffman, 319 U. S. 293, 298 (1943).

This broad jurisdictional barrier, however, has been held by this Court to be inapplicable to suits brought by the United States “to protect itself and its instrumen-talities from unconstitutional state exactions.” Department of Employment v. United States, 385 U. S. 355, 358 (1966).

The District Court, citing Department of Employment and cases from other' courts, concluded:

“While the exceptions to § 1341 have been expressed most often in terms of the Federal instrumentality doctrine, we do not view the exceptions as limited to cases where this doctrine is clearly applicable. It seems clear [that § 1341] does not bar federal court jurisdiction in cases where immunity from state taxation is asserted on the basis of federal law with respect to persons or entities in which the United States has a real and significant interest.” 392 F. Supp., at 1303 (emphasis added).

In its brief the State argues that any reliance on the federal-instrumentality doctrine, either as such or as expanded by the District Court, for purposes of finding jurisdiction in these cases is contrary to the substantive decisions of this Court which “cut to the bone the proposition that restricted Indian lands and the proceeds from them were — as a matter of constitutional law— automatically exempt from state taxation.” Mescalero Apache Tribe v. Jones, 411 U. S. 145, 150 (1973). See McClanahan, 411 U. S., at 170 n. 5; Oklahoma Tax Comm’n v. Texas Co., 336 U. S. 342 (1949); Oklahoma Tax Comm’n v. United States, 319 U. S. 598 (1943).

We have indeed recently declined “the invitation to resurrect the expansive version of the intergovernmental-immunity doctrine that has been so consistently rejected” in this kind of case. Mescalero, supra, at 155. While the concept of a federal instrumentality may well have greater usefulness in determining the applicability of § 1341, Department of Employment v. United States, supra, than in providing the touchstone for deciding whether or not Indian tribes may be taxed, Mescalero, supra, we do not believe that the District Court’s expanded version of this doctrine, quoted above, can by itself avoid the bar of § 1341.

The District Court, however, also relied on a more recent jurisdictional statute, 28 U. S. C. § 1362, which provides:

“The district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States.”

Sections 1341 and 1362 do not cross-reference each other. Since presumably all actións properly within the jurisdiction of the United States district courts are authorized by one or another of the statutes conferring jurisdiction upon those courts, the mere fact that a jurisdictional statute such as § 1362 speaks in general terms of “all” enumerated civil actions does not itself signify that Indian tribes are exempted from the provisions of § 1341.

Looking to the legislative history of § 1362 for whatever light it may shed on the question, we find an indication of a congressional purpose to open the federal courts to the kind of claims that could have been brought by the United States as trustee, but for whatever reason were not so brought. Section 1362 is characterized by the reporting House Judiciary Committee as providing “the means whereby the tribes are assured of the same judicial determination whether the action is brought in their behalf by the Government or by their own attorneys.” While this is hardly an unequivocal statement of intent to allow such litigation to proceed irrespective of other explicit jurisdictional limitations, such as § 1341, it would appear that Congress contemplated that a tribe’s access to federal court to litigate a matter arising “under the Constitution, laws, or treaties” would be at least in some respects as broad as that of the United States suing as the tribe’s trustee.

That the United States could have brought these actions, by itself or as coplaintiff, seems reasonably clear. In Heckman v. United States, 224 U. S. 413 (1912), the United States sued to cancel numerous conveyances by Cherokee allottees-grantors, who were not parties, as vio-lative of federal restrictions upon the Indians’ power of alienation. In the course of concluding that the United States had the requisite interest in enforcing these restrictions for the Indians’ benefit, the Court discussed United States v. Rickert, 188 U. S. 432 (1903), which upheld the right of the Government to seek injunctive relief against county taxation directed at improvements on and tools used to cultivate land allotted to and occupied by the Sioux Indians. Of Rickert, the Court in Heckman stated:

“But the decision [that the United States had the requisite interest] rested upon a broader foundation than the mere holding of a legal title to land in trust, and embraced the recognition of the interest of the United States in securing immunity to the Indians from taxation conflicting with the measures it had adopted for their protection.” 224 U. S., at 441.

Here the United States could have made the same attack on the State’s assertion of taxing power as was in fact made by the Tribe. Heckman v. United States, supra. We think that the legislative history of § 1362, though by no means dispositive, suggests that in certain respects tribes suing under this section were to be accorded treatment similar to that of the United States had it sued on their behalf. Since the United States is not barred by § 1341 from seeking to enjoin the enforcement of a state tax law, Department of Employment v. United States, supra, we hold that the Tribe is not barred from doing so here.

Ill

In McClanahan this Court considered the question whether the State had the power to tax a reservation Indian, a Navajo, for income earned exclusively on the reservation. We there looked to the language of the Navajo treaty and the applicable federal statutes “which define the limits of state power.” 411 U. S., at 172. Reading them against the “backdrop” of the Indian sovereignty doctrine, the Court concluded “that Arizona ha[d] exceeded its lawful authority” by imposing the tax at issue. Id., at 173. In Mescolero, the companion case, the import of McClanahan was summarized:

“[I]n the special area of state taxation, absent cession of jurisdiction or other federal statutes permitting it, there has been no satisfactory authority for taxing Indian reservation lands or Indian income from activities carried on within the boundaries of the reservation, and McClanahan v. Arizona State Tax Comm’n, supra, lays to rest any doubt in this respect by holding that such taxation is not permissible absent congressional consent.” 411 U. S., at 148.

Aligning itself with the dissenting opinion below, the State first seeks to avoid McClanahan on two grounds: (1) the manner in which the Flathead Reservation has developed to its present state distinguishes it from the Navajo Reservation; (2) there does exist a federal statutory basis permitting Montana to tax.

The State pointed below to a variety of factors: reservation Indians benefited from expenditures of state revenues for education, welfare, and other services, such as a sewer system; the Indians had the right to vote and to hold local and state office; and the Indian and non-Indian residents within the reservation were substantially integrated as a business and social community. The District Court also found, however, that the Federal Government “likewise made substantial payments for various purposes,” and that the Tribe’s own income contributed significantly to its economic well-being. 392 F. Supp., at 1314. Noting this Court’s rejection of a substantially identical argument in McClanahan, see 411 U. S., at 173, and n. 12, and the fact that the Tribe, like the Navajos, had not abandoned its tribal organization, the District Court could not accept the State’s proposition that the tribal members “are now so completely integrated with the non-Indians . . . that there is no longer any reason to accord them different treatment than other citizens.” 392 F. Supp., at 1315. In view of the District Court’s findings, we agree that there is no basis for distinguishing McClanahan on this ground.

As to the second ground, we note that the State does not challenge the District Court's overall conclusion that the treaty and statutes upon which the Tribe relies in asserting the lack of state taxing authority “are essentially the same as those involved in McClanahan.” We agree, and it would serve no purpose to retrace our analysis in this respect in McClanahan, 411 U. S., at 173-179. The State instead argues that the District Court failed to properly consider the effect of the General Allotment Act of 1887, 24 Stat. 388, and a later enactment in 1904, 33 Stat. 302, applying that Act to the Flathead Reservation. Section 6 of the General Allotment Act, 24 Stat. 390, as amended, 25 U. S. C. § 349, provides in part:

“At the expiration of the trust period and when the lands have been conveyed to the Indians by patent in fee . . . then each and every allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside ...

The State relies on Goudy v. Meath, 203 U. S. 146 (1906), where the Court, applying the above section, rejected the claim of an Indian patentee thereunder that state taxing jurisdiction was not among the “laws” to which he and his land had been made subject. Building on Goudy and the fact that the General Allotment Act has never been explicitly “repealed,” the State claims that Congress has never intended to withdraw Montana’s taxing jurisdiction, and that such power continues to the present.

We find the argument untenable for several reasons. By its terms § 6 does not reach Indians residing or producing income from lands held in trust for the Tribe, which make up about one-half of the land area of the reservation. If the General Allotment Act itself establishes Montana’s jurisdiction as to those Indians living on “fee patented” lands, then for all jurisdictional purposes — civil and criminal — the Flathead Reservation has been substantially diminished in size. A similar claim was made by the State in Seymour v. Superintendent, 368 U. S. 351 (1962), to which we responded:

“ [The] argument rests upon the fact that where the existence or nonexistence of an Indian reservation, and therefore the existence or nonexistence of federal jurisdiction, depends upon the ownership of particular parcels of land, law enforcement officers operating in the area will find it necessary to search tract books in order to determine whether criminal jurisdiction over each particular offense, even though committed within the reservation, is in the State or Federal Government.” Id., at 358.

We concluded that “[s]ueh an impractical pattern of checkerboard jurisdiction,” ibid., was contrary to the intent embodied in the existing federal statutory law of Indian jurisdiction. See also United States v. Mazurie, 419 U. S. 544, 554-555 (1975).

The State’s argument also overlooks what this Court has recently said of the present effect of the General Allotment Act and related legislation of that era:

“Its policy was to continue the reservation system and the trust status of Indian lands, but to allot tracts to individual Indians for agriculture and grazing. When all the lands had been allotted and the trust expired, the reservation could be abolished. Unallotted lands were made available to non-Indians with the purpose, in part, of promoting interaction between the races and of encouraging Indians to adopt white ways. See § 6 of the General Allotment Act, 24 Stat. 390 . . . .” Mattz v. Arnett, 412 U. S. 481, 496 (1973).
“The policy of allotment and sale of surplus reservation land was repudiated in 1934 by the Indian Reorganization Act, 48 Stat. 984, now amended and codified as 25 U. S. C. § 461 et seg.” Id., at 496 n. 18.

The State has referred us to no decisional authority— and we know of none — giving the meaning for which it contends to § 6 of the General Allotment Act in the face of the many and complex intervening jurisdictional statutes directed at the reach of state law within reservation lands — statutes discussed, for example, in McClanahan, 411 U. S., at 173-179. See also Kennerly v. District Court of Montana, 400 U. S. 423 (1971). Congress by its more modem legislation has evinced a clear intent to eschew any such “checkerboard” approach within an existing Indian reservation, and our cases have in turn followed Congress’ lead in this area.

A second, discrete claim advanced by the State is that the tax immunity extended by the District Court in applying federal law constitutes an invidious discrimination against non-Indians on the basis of race, contrary to the Due Process Clause of the Fifth Amendment. It is said that the Federal Government has forced this racially based exemption onto Montana so as to create a state statutory classification violative of the latter’s duty under the Equal Protection Clause of the Fourteenth Amendment.

We need not dwell at length on this constitutional argument, for assuming that the State has standing to raise it on behalf of its non-Indian citizens and taxpayers, we think it is foreclosed by our recent decision in Morton v. Mancari, 417 U. S. 535 (1974). In reviewing the variety of statutes and decisions according special treatment to Indian tribes and reservations, we stated, id., at 552-555:

“Literally every piece of legislation dealing with Indian tribes and reservations . . . single [s] out for special treatment a constituency of tribal Indians living on or near reservations. If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code (25 U. S. C.) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized.
“On numerous occasions this Court specifically has upheld legislation that singles out Indians for particular and special treatment.”

The test to be applied to these kinds of statutory preferences, which we said were neither “invidious” nor “racial” in character, governs here:

“As long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians, such legislative judgments will not be disturbed.” Id., at 555.

For these reasons, the personal property tax on personal property located within the reservation; the vendor license fee sought to be applied to a reservation Indian conducting a cigarette business for the Tribe on reservation land; and the cigarette sales tax, as applied to on-reservation sales by Indians to Indians, conflict with the congressional statutes which provide the basis for decision with respect to such impositions. McClanahan, supra; Mescalero Apache Tribe v. Jones, 411 U. S. 145 (1973).

IY

The Tribe would carry these cases significantly further than we have done, however, and urges that the State cannot impose its cigarette tax on sales by Indians to non-Indians because “[i]n simple terms, [the Indian retailer] has been taxed, and . . . has suffered a measurable out-of-pocket loss.” But this claim ignores the District Court’s finding that “it is the non-Indian consumer or user who saves the tax and reaps the benefit of the tax exemption.” 392 F. Supp., at 1308. That finding necessarily follows from the Montana statute, which provides that the cigarette tax “shall be conclusively presumed to be [a] direct [tax] on the retail consumer precollected for the purpose of convenience and facility only.” Since nonpayment of the tax is a misdemeanor as to the retail purchaser, the competitive advantage which the Indian seller doing business on tribal land enjoys over all other cigarette retailers, within and without the reservation, is dependent on the extent to which the non-Indian purchaser is willing to flout his legal obligation to pay the tax. Without the simple expedient of having the retailer collect the sales tax from non-Indian purchasers, it is clear that wholesale violations of the law by the latter class will go virtually unchecked.

The Tribe asserts that to make the Indian retailer an “involuntary agent” for collection of taxes owed by non-Indians is a “gross interference with [its] freedom from state regulation,” and cites Warren Trading Post v. Arizona Tax Comm’n, 380 U. S. 685 (1965), as controlling. However, that case involved a gross income tax imposed on the on-reservation sales by the trader to reservation Indians. Unlike the sales tax here, the tax was imposed directly on the seller, and, in contrast to the Tribe’s claim, there was in Warren no claim that the State could not tax that portion of the receipts attributable to on-reservation sales to non-Indians. Id., at 686 n. 1. Our conclusion in Warren that assessment and collection of that tax “would to a substantial extent frustrate the evident congressional purpose of ensuring that no burden shall be imposed upon Indian traders for trading with Indians on reservations,” id., at 691, does not apply to the instant case.

The State’s requirement that the Indian tribal seller collect a tax validly imposed on non-Indians is a minimal burden designed to avoid the likelihood that in its absence non-Indians purchasing from the tribal seller will avoid payment of a concededly lawful tax. Since this burden is not, strictly speaking, a tax at all, it is not governed by the language of Mescalero, quoted supra, at 475-476, dealing with the “special area of state taxation.” We see nothing in this burden which frustrates tribal self-government, see Williams v. Lee, 358 U. S. 217, 219-220 (1959), or runs afoul of any congressional enactment dealing with the affairs of reservation Indians, United States v. McGowan, 302 U. S. 535, 539 (1938): “Enactments of the Federal Government passed to protect and guard its Indian wards only affect the operation, within the colony, of such state laws as conflict with the federal enactments.” See also Thomas v. Gay, 169 U. S. 264, 273 (1898). We therefore agree with the District Court that to the extent that the “smoke shops” sell to those upon whom the State has validly imposed a sales or excise tax with respect to the article sold, the State may require the Indian proprietor simply to add the tax to the sales price and thereby aid the State’s collection and enforcement thereof.

For the foregoing reasons, the judgments of the District Court are

Affirmed.

       See 28 U. S. C. § 2281.

       See Part II, infra, for the discussion of the jurisdictional question.

       For ease of reference, the various parties involved in the appeal and cross-appeal will be referred to simply as the State and the Tribe, except as otherwise noted.

       The defendants-appellants in the cigarette tax case are Montana's Department of Revenue, its director, and the sheriffs of the counties in which the "smoke shops” were located. No monetary-relief has been sought in this action.

       Suit was brought shortly after the arrests. The record does not indicate whether criminal proceedings were instituted in state court, and in any case the State has made no claim as to the propriety of the District Court’s entry of relief under Younger v. Harris, 401 U. S. 37 (1971), and related decisions Of this Court.

         The District Court noted that the State’s present statutory Scheme contemplates advance payment or “precollection” of the sales tax by the retailer when he purchases his inventory from the wholesaler. Recognizing that its holding — a distinction between sales to Indians and to non-Indians — would result in “complicated problems” of enforcement by the State, the District Court deferred passing on these problems pending a decision by this Court. We, of course, express no-opinion on this question.

       Named as defendants were various county officials, the State’s Department of Revenue and its director, and the State itself. In contrast to the cigarette tax case, however, the plaintiffs, suing as representatives of all other members of the Tribe residing on the reservation, demanded a refund of personal property taxes paid to the date of the District Court’s final judgment. In the opinion accompanying the District Court’s judgment entering the requested declaratory and injunctive relief in favor of the Tribe and the individual Indians, it stated that “any further questions” were reserved pending this Court’s final determination of the constitutionality of the personal property tax statutes. Our conclusions in Parts II and III, infra, that the District Court, with subject-matter jurisdiction over the Tribe’s claims, properly entered injunctive relief in its favor implicitly embrace a finding that the Tribe, qua Tribe, has a discrete claim of injury with respect to these forms of state taxation so as to confer standing upon it apart from the monetary injury asserted by the individual Indian plaintiffs. Since the substantive interest which Congress has sought to protect is tribal self-government, such a conclusion is quite consistent with other doctrines of standing. See, e. g., Warth v. Seldin, 422 U. S. 490, 498-499 (1975). Whether in like fashion standing rests in the Tribe to litigate the pending individual refimd claims is a question properly left for the District Court as and when these claims are pursued, and we express no opinion thereon. We note, however, that if only the individual Indians have standing to sue for refunds, their claims must be properly grounded jurisdictionally. See, e. g., Zahn v. International Paper Co., 414 U. S. 291, 294 (1973).

       The Tribe and the individual members had earlier filed an identical attack against Montana’s personal income tax as applied to income earned by tribal members on the reservation. Shortly after this Court’s decision in McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164 (1973), the State stipulated that McClanahan barred its taxing jurisdiction in this respect and agreed to cease voluntarily its collection efforts and make refunds. Relying on this settlement, the Tribe thereafter requested the State’s Attorney General to order a similar cessation with respect to personal property taxes. Advised that its request was rejected, the Tribe instituted this action.

       The Tribe has from the beginning expressly disclaimed any immunity from this nondiseriminatory vehicle registration fee.

         There the United States sought injunctive relief against certain state taxation of its coplaintiff, the American National Red Cross, which on the merits this Court held was immune from same as a federal instrumentality.

       Section 1341 itself, of course, includes a proviso that the remedy in state court must be "plain, speedy and efficient.” The Tribe does not claim that it would not have had such a remedy under Montana law.

       H. R. Rep. No. 2040, 89th Cong., 2d Sess., 2-3 (1966).

         Heckman and Bickert were both eases in which the protection asserted by the United States on behalf of the Indians was grounded in the federal-instrumentality doctrine. Since Mescalero, as we have noted, effectively eliminated that doctrine as a basis for immunizing Indians from state taxation, there might appear to be a certain inconsistency in our reliance on Heckman. But the question of whether the United States has standing (Heckman used the term “capacity”) to sue on behalf of others is analytically distinct from the question of whether the substantive theory on which it relies will prevail, and each is in turn separate from whether in-junctive relief can issue at the United States' behest irrespective of § 1341. Department of Employment, see supra, at 470, and n. 10, did not hold that the United States had standing only in actions falling within the federal-instrumentality doctrine. Cases in the lower federal courts cited therein (385 U. S., at 358 n. 6), e. g., United States v. Arlington County, Virginia, 326 F. 2d 929, 931-933 (CA4 1964), and other cases from this Court, see In re Debs, 158 U. S. 564, 584 (1895); United States v. San Jacinto Tin Co., 125 U. S. 273, 284-286 (1888), indicate otherwise. The proper basis for the protection asserted here, of course, is not the federal-instrumentality doctrine eschewed in Mescalero, but is that which McClanahan identified, i. e., that state taxing jurisdiction has been pre-empted by the applicable treaties and federal legislation. While not deciding what limits there are upon the United States’ standing to' sue absent enabling legislation, we conclude that the relationship between the United States and the .Tribe — grounded in the Hell Gate Treaty and a century of subsequent legislation — would have established the former’s standing to raise the pre-emption claim on behalf of the latter, and that an injunctive remedy to enforce that claim would not have been barred by § 1341.

       The District Court went on to find jurisdiction over the individual Indian plaintiffs in both actions on the basis of 28 U. S. C. § 1343 (3), together with their allegation that these taxes deprived them of a right secured by the Commerce Clause. Noting that § 1362 by its terms goes only to an “Indian tribe or band,” the State has argued that to hold § 1341 inapplicable merely because the state tax is attacked on constitutional grounds virtually strips it of force and is contrary to other federal-court decisions: Bland v. McHann, 463 F. 2d 21 (CA5 1972), cert. denied, 410 U. S. 966 (1973); American Commuters Assn., Inc. v. Levitt, 405 F. 2d 1148 (CA2 1969). Cf. Lynch v. Household Finance Corp., 405 U. S. 538, 542 n. 6 (1972). The Tribe’s brief does not discuss this aspect of the District Court’s holding. We need not decide this question, however, since all of the substantive issues raised on appeal can be reached by deciding the claims of the Tribe alone, which did bring this action in the District Court under § 1362. See n. 7, supra. Cf. California Bankers Assn. v. Shultz, 416 U. S. 21 (1974). Any further proceedings with respect to refund claims by or on behalf of individual Indians, see n. 7, supra, would not appear to implicate § 1341.

       The quotation is taken from the first (unpublished) opinion of the District Court, Civ. No. 2145 (Mont., Oct. 10, 1073), Jurisdictional Statement, App. 73, 81 n. 9, the conclusions of which with respect to McClanahan were reaffirmed in the later opinions filed May 10, 1974, February 4, 1975, and March 19, 1975, published at 392 F. Supp. 1297, 1312; 392 F. Supp. 1325.

       The District Court noted two further distinctions within its ruling. It extended its holding to sales of cigarettes to Indians living on the Flathead Reservation irrespective of their actual membership in the plaintiff Tribe. The State has not challenged this holding, and we therefore do not disturb it. Secondly, while recognizing that different rules may apply “where Indians have left the reservation and become assimilated into the general community,” McClanahan, 411 U. S., at 171, the District Court on the present record did not decide whether the cigarette sales tax would apply to on-reservation sales to Indians who resided off the Flathead Reservation. That question, too, is therefore not before us.

       It is thus clear that the basis for the invalidity of these taxing measures, which we have found to be inconsistent with existing federal statutes, is the Supremacy Clause, U. S. Const., Art. VI, cl. 2, and not any automatic exemptions “as a matter of constitutional law” either under the Commerce Clause or the intergovernmental-immunity doctrine as laid down originally in M‘Culloch v. Maryland, 4 Wheat. 316 (1819). If so, then the basis for convening a three-judge court in this type of case has effectively disappeared, for this Court has expressly held that attacks on state statutes raising only Supremacy Clause invalidity do not fall within the scope of 28 U. S. C. § 2281. Swift & Co. v. Wickham, 382 U. S. 111 (1965). Here, however, the District Court properly convened a § 2281 court, because at the outset the Tribe’s attack asserted unconstitutionality of these statutes under the Commerce Clause, a not insubstantial claim since Mescaiero and McClanahan had not yet been decided. See Goosby v. Osser, 409 U. S. 512 (1973).

       Mont. Rev. Code Ann. § 84-5606 (1) (1947).

       §§ 84-5606.18, 84-5606.31 (Supp, 1975).