author: Mr. Justice Brennan

text:
    De CANAS et al. v. BICA et al.
    No. 74-882.
    Argued December 16, 1975
    Decided February 25, 1976

      BRennan, J., delivered the opinion of the Court, in which all Members joined except Stevens, J., who took no part in the consideration or decision of the case.

      Robert S. Catz argued the cause for petitioners. With him on the briefs were Howard S. Scher, Ralph Santiago Abascal, Burton D. Fretz, and Robert B. Johnstone.

      William S. Marrs argued the cause for respondents. With him on the brief was Robert L. Trapp, Jr.

   Mr. Justice Brennan

delivered the opinion of the Court.

California Labor Code Ann. § 2805 (a) provides that “[n]o employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” The question presented in this case is whether § 2805 (a) is unconstitutional either because it is an attempt to regulate immigration and naturalization or because it is pre-empted under the Supremacy Clause, Art. VI, cl. 2, of the Constitution, by the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U. S. C. § 1101 et seq., the comprehensive federal statutory scheme for regulation of immigration and naturalization.

Petitioners, who are migrant farmworkers, brought this action pursuant to § 2805 (c) against respondent farm labor contractors in California Superior Court. The complaint alleged that respondents had refused petitioners continued employment due to a surplus of labor resulting from respondents’ knowing employment, in violation of § 2805 (a), of aliens not lawfully admitted to residence in the United States. Petitioners sought reinstatement and a permanent injunction against respondents’ willful employment of illegal aliens. The Superior Court, in an unreported opinion, dismissed the complaint, holding “that Labor Code 2805 is unconstitutional . . . [because] [i]t encroaches upon, and interferes with, a comprehensive regulatory scheme enacted by Congress in the exercise of its exclusive power over immigration . . . .” App. 17a. The California Court of Appeal, Second Appellate District, affirmed, 40 Cal. App. 3d 976, 115 Cal. Rptr. 444 (1974). The Court of Appeal held that § 2805 (a) is an attempt to regulate the conditions for admission of foreign nationals, and therefore unconstitutional because, “in the area of immigration and naturalization, congressional power is exclusive.” Id., at 979, 115 Cal. Rptr., at 446. The Court of Appeal further indicated that state regulatory power over this subject matter was foreclosed when Congress, “as an incident of national sovereignty,” enacted the INA as a comprehensive scheme governing all aspects of immigration and naturalization, including the employment of aliens, and “specifically and intentionally declined to add sanctions on employers to its control mechanism.” Ibid. The Supreme Court of California denied review. We granted certiorari, 422 U. S. 1040 (1975). We reverse.

I

Power to regulate immigration is unquestionably exclusively. a federal power. See, e. g., Passenger Cases, 7 How. 283 (1849); Henderson v. Mayor of New York, 92 U. S. 259 (1876); Chy Lung v. Freeman, 92 U. S. 275 (1876); Fong Yue Ting v. United States, 149 U. S. 698 (1893). But the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised. For example, Takahashi v. Fish & Game Comm’n, 334 U. S. 410, 415-422 (1948), and Graham v. Richardson, 403 U. S. 365, 372-373 (1971), cited a line of cases that upheld certain discriminatory state treatment of aliens lawfully within the United States. Although the “doctrinal foundations” of the cited cases, which generally arose under the Equal Protection Clause, e. g., Clarke v. Deckebach, 274 U. S. 392 (1927), “were undermined in Takahashi,” see In re Griffiths, 413 U. S. 717, 718-722 (1973); Graham v. Richardson, supra, at 372-375, they remain authority that, standing alone, the fact that aliens are the subject of a state statute does not render it a regulation of immigration, which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain. Indeed, there would have been no need, in cases such as Graham, Takahashi, or Hines v. Davidowits, 312 U. S. 52 (1941), even to discuss the relevant congressional enactments in finding pre-emption of state regulation if all state regulation of aliens was ipso facto regulation of immigration, for the existence vel non of federal regulation is wholly irrelevant if the Constitution of its own force requires preemption of such state regulation. In this case, California has sought to strengthen its economy by adopting federal standards, in imposing criminal sanctions against state employers who knowingly employ aliens who have no federal right to employment within the country; even if such local regulation has some purely speculative and indirect impact on immigration, it does not thereby become a constitutionally proscribed regulation of immigration that Congress itself would be powerless to authorize or approve. Thus, absent congressional action, § 2805 would not be an invalid state incursion on federal power.

II

Even when the Constitution does not itself commit exclusive power to regulate a particular field to the Federal Government, there are situations in which state regulation, although, harmonious with federal regulation, must nevertheless be invalidated under the Supremacy Clause. As we stated in Florida Lime & Avocado Growers v. Paul, 373 U. S. 132, 142 (1963):

“■[FJederal regulation . . . should not be deemed preemptive of state regulatory power in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.”

In this case, we cannot conclude that pre-emption is required either because “the nature of the ... subject matter [regulation of employment of illegal aliens] permits no other conclusion,” or because “Congress has unmistakably so ordained” that result.

States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State. Child labor laws, minimum and other wage laws, laws affecting occupational health and safety, and workmen’s compensation laws are only a few examples. California’s attempt in § 2805 (a) to prohibit the knowing employment by California employers of persons not entitled to lawful residence in the United States, let alone to work here, is certainly within the mainstream of such police power regulation. Employment of illegal aliens in timés of high unemployment deprives citizens and legally admitted aliens of jobs; accept-anee by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions. These local problems are particularly acute in California in light of the significant influx into that State of illegal aliens from neighboring Mexico. In attempting to protect California’s fiscal interests and lawfully resident labor force from the deleterious effects on its economy resulting from the employment of illegal aliens, § 2805 (a) focuses directly upon these essentially local problems and is tailored to combat effectively the perceived evils.

Of course, even state regulation designed to protect vital state interests must give way to paramount federal legislation. But we will not presume that Congress, in enacting the INA, intended to oust state authority to regulate the employment relationship covered by § 2805 (a) in a manner consistent with pertinent federal laws. Only a demonstration that complete ouster of state power — including state power to promulgate laws not in conflict with federal laws — was “ ‘the clear and manifest purpose of Congress’ ” would justify that conclusion. Florida Lime & Avocado Growers v. Paul, supra, at 146, quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). Respondents have not made that demonstration. They fail to point out, and an independent review does not reveal, any specific indication in either the wording or the legislative history of the INA that Congress intended to preclude even harmonious state regulation touching on aliens in general, or the employment of illegal aliens in particular.

Nor can such intent be derived from the scope and detail of the INA. The central concern of the INA is with the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country. The comprehensiveness of the INA scheme for regulation of immigration and naturalization, without more, cannot be said to draw in the employment of illegal aliens as “plainly within. . . . [that] central aim of federal regulation.” San Diego Unions v. Gar-mon, 359 U. S. 236, 244 (1959). This conclusion is buttressed by the fact that comprehensiveness of legislation governing entry and stay of aliens was to be expected in light of the nature and complexity of the subject. As the Court said in another legislative context: “Given the complexity of the matter addressed by Congress . . . , a detailed statutory scheme was both likely and appropriate, completely apart from any questions of pre-emptive intent.” New York Dept. of Social Services v. Dublino, 413 U. S. 405, 415 (1973).

It is true that a proviso to 8 U. S. C. § 1324, making it a felony to harbor illegal entrants, provides that “employment (including the usual and normal practices incident to employment) shall not be deemed to constitute harboring.” But this is at best evidence of a peripheral concern with employment of illegal entrants, and San Diego Unions v. Garmon, supra, at 243, admonished that “due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy, has required us not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern of the [federal regulation] . . .

Finally, rather than evidence that Congress “has unmistakably ... ordained” exclusivity of federal regulation in this field, there is evidence in the form of the 1974 amendments to the Farm Labor Contractor Registration Act, 88 Stat. 1652, 7 U. S. C. § 2041 et seq. (1970 ed., Supp. IV), that Congress intends that States may, to the extent consistent with federal law, regulate the employment of illegal aliens. Section 2044 (b) authorizes revocation of the certificate of registration of any farm labor contractor found to have employed “an alien not lawfully admitted for permanent residence, or who has not been authorized by the Attorney General to accept employment.” Section 2045 (f) prohibits farm labor contractors from employing “an alien not lawfully admitted for permanent residence or who has not been authorized by the Attorney General to accept employment.” Of particular significance to our inquiry is the further provision that “[t]his chapter and the provisions contained herein are intended to supplement State action and compliance with this chapter shall not excuse anyone from compliance with appropriate State law and regulation.” 7 U. S. C. § 2051 (emphasis supplied). Although concerned only with agricultural employment, the Farm Labor Contractor Registration Act is thus persuasive evidence that the INA should not be taken as legislation by Congress expressing its judgment to have uniform federal regulations in matters affecting employment of illegal aliens, and therefore barring state legislation such as § 2805 (a).

Hines v. Davidowitz, 312 U. S. 52 (1941), and Pennsylvania v. Nelson, 350 U. S. 497 (1956), upon which respondents rely, are fully consistent with this conclusion. Hines held that Pennsylvania’s Alien Registration Act of 1939 was pre-empted by the federal Alien Registration Act. Nelson held that the Pennsylvania Sedition Act was pre-empted by the federal Smith Act. Although both cases relied on the comprehensiveness of the federal regulatory schemes in finding pre-emptive intent, both federal statutes were in the specific field which the States were attempting to regulate, while here there is no indication that Congress intended to preclude state law in the area of employment regulation. And Nelson stated that even in the face of the general immigration laws, States would have the right “to enforce their sedition laws at times when the Federal Government has not occupied the field and is not protecting the entire country from seditious conduct.” 350 U. S., at 500. Moreover^ in neither Hines nor Nelson was there affirmative evidence, as here, that Congress sanctioned concurrent state legislation on the subject covered by the challenged state law. Furthermore, to the extent those cases were based on the predominance of federal interest in the fields of immigration and foreign affairs, there would not appear to be a similar federal interest in a situation in which the state law is fashioned to remedy local problems, and operates only on local employers, and only with respect to individuals whom the Federal Government has already declared cannot work in this country. Finally, the Pennsylvania statutes in Hines and Nelson imposed burdens on aliens lawfully within the country that created conflicts with various federal laws.

III

There remains the question whether, although the INA contemplates some room for state legislation, § 2805 (a) is nevertheless unconstitutional because it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” in enacting the INA. Hines v. Davidowitz, supra, at 67; Florida Lime & Avocado Growers v. Paul, 373 U. S., at 141. We do not think that we can address that inquiry upon the record before us. The Court of Appeal did not reach the question in light of its decision, today reversed, that Congress had completely barred state action in the field of employment of illegal aliens. Accordingly, there are questions of construction of § 2805 (a) to be settled by the California courts before a determination is appropriate whether, as construed, § 2805 (a) “can be enforced without impairing the federal superintendence of the field” covered by the INA. 373 U. S., at 142.

For example, § 2805 (a) requires that to be employed an alien must be “entitled to lawful residence.” In its application, does the statute prevent employment of aliens who, although “not entitled to lawful residence in the United States,” may under federal law be permitted to work here? Petitioners conceded at oral argument that, on its face, § 2805 (a) would apply to such aliens and thus unconstitutionally conflict with federal law. They point, however, to the limiting construction given § 2805 (a) in administrative regulations promulgated by the California Director of Industrial Relations. California Administrative Code, Title 8, part 1, c. 8, art. 1, § 16209 (1972), defines an alien “entitled to lawful residence” as follows: “An alien entitled to lawful residence shall mean any non-citizen of the United States who is in possession of a Form 1-151, Alien Registration Receipt Card, or any other document issued by the United States Immigration and Naturalization Service which authorizes him to work.” Dolores Canning Co. v. Howard, 40 Cal. App. 3d 673, 677 n. 3, 115 Cal. Rptr, 435, 436 n. 3 (1974). Whether these regulations were before the Superior Court in this case does not appear, and the Court of Appeal found § 2805 (a) unconstitutional without addressing whether it conflicts with federal law. Obviously it is for the California courts to decide the effect of these administrative regulations in construing § 2805 (a), and thus to decide in the first instance whether and to what extent, see n. 5, supra, § 2805 as construed would conflict with the INA or other federal laws or regulations. It suffices that this Court decide at this time that the Court of Appeal erred in holding that Congress in the INA precluded any state authority to regulate the employment of illegal aliens.

The judgment of the Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Me. Justice Stevens took no part in the consideration or decision of this case.

       Section 2805 of the California Labor Code, added by Stats. 1971, p. 2847, c. 1442, §1, reads in full as follows:
      “(a) No employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.
      “(b) A person found guilty of violation of subdivision (a) is punishable by a fine of not less than two hundred dollars ($200) nor more than five hundred dollars ($500) for each offense.
      “(c) The foregoing provisions shall not be a bar to civil action against the employer based upon a violation of subdivision (a).”

         We assume, arguendo, in this opinion, in referring to “illegal aliens,” that the prohibition of § 2805 (a) only applies to aliens who would not be permitted to work in the United States under pertinent federal laws and regulations. Whether that is the correct construction of the statute is an issue that will remain open for determination by the state courts on remand. See Part III, infra.

       Insofar as the determination of § 2805’s objective is a matter of state law, the Court of Appeal’s view that § 2805 (a) is an attempt to regulate the conditions for admission of foreign nationals may be questioned. Another division of the Court of Appeal has said that “the section is not aimed at immigration control or regulation but seeks to aid California residents in obtaining jobs . . . .” Dolores Canning Co. v. Howard, 40 Cal. App. 3d 673, 686, 115 Cal. Rptr. 435, 442 (1974). Dolores Canning also invalidated §2805 (a), however, relying, inter alia, on Guss v. Utah Labor Board, 353 U. S. 1 (1957), and San Diego Unions v. Garmon, 359 U. S. 236 (1959), and stating that the statute “does or could affect immigration in several ways.” 40 Cal. App. 3d, at 686, 115 Cal. Rptr., at 442-443.
      It is also uncertain that the Court of Appeal viewed § 2805 as a constitutionally proscribed state regulation of immigration that would be invalid even absent federal legislation; the court’s discussion of the INA seems to imply that the court assumed that Congress could clearly authorize state legislation such as § 2805, even if it had not yet done so.

       H. R. 8713, now pending in Congress, would amend 8 U. S. C. § 1324 to provide a penalty for knowingly employing an alien not lawfully admitted to the United States.

       See also, e. g., New York Dept. of Social Services v. Dublino, 413 U. S. 405, 413-414 (1973); Schwartz v. Texas, 344 U. S. 199. 202-203 (1952); California v. Zook, 336 U. S. 725, 732-733 (1949).
      Of course, even absent such a manifestation of congressional intent to “occupy the field,” the Supremacy Clause requires the invalidation of any state legislation that burdens or conflicts in any manner with any federal laws or treaties. See Part III, infra. However, “conflicting law, absent repealing or exclusivity provisions, should be pre-empted . . . ‘only to the extent necessary to protect the achievement of the aims of’ ” the federal law, since “the proper approach is to reconcile ‘the operation of both statutory schemes with one another rather than holding [the state scheme] completely ousted.’” Merrill Lynch, Pierce, Fenner & Smith v. Ware, 414 U. S. 117, 127 (1973), quoting Silver v. New York Stock Exchange, 373 U. S. 341, 361, 357 (1963).

       Of course, state regulation not congressionally sanctioned that discriminates against aliens lawfully admitted to the country is impermissible if it imposes additional burdens not contemplated by Congress:
      “The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization. See Hines v. Davidowitz, 312 U. S. 52, 66. Under the Constitution the states are granted no such powers; they can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states. State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with this constitutionally derived federal power to regulate immigration, and have accordingly been held invalid.” Takahashi v. Fish & Game Comm’n, 334 U. S. 410, 419 (1948) (emphasis supplied).
      See also, e. g., Graham v. Richardson, 403 U. S. 365, 376-380 (1971); Truax v. Raich, 239 U. S. 33, 41-42 (1915); cf. also Sugarman v. Dougall, 413 U. S. 634, 641-646 (1973); In re Griffiths, 413 U. S. 717 (1973). But California Code §2805 appears to be designed to protect the opportunities of lawfully admitted aliens for obtaining and holding jobs, rather than to add to their burdens. The question whether § 2805 (a) nevertheless in fact imposes burdens bringing it into conflict with the INA is open for inquiry on remand. See Part III, infra.

       In finding § 2805 pre-empted by the INA, the Court of Appeal cited Guss v. Utah Labor Board, 353 U. S. 1 (1957), and San Diego Unions v. Garmon, 353 U. S. 26 (1957), and 359 U. S. 236 (1959) as controlling authority. Reliance upon those decisions was misplaced. Those decisions involved labor management disputes over conduct expressly committed to the National Labor Relations Board to regulate, but concerning which the Board had declined to assert jurisdiction; the Board had not ceded jurisdiction of such regulation to the States, as it was empowered to do. 353 U. S., at 6-9. This Court rejected the argument that the inaction of the NLRB left the States free to regulate the conduct. Section 10 (a) of the National Labor Relations Act, 29 U. S. C. § 160 (a), expressly excluded state regulation of the disputed conduct unless the Board entered into an agreement with the State ceding regulatory authority. The Court held in that circumstance, that “[t]o leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law.” San Diego Unions v. Garmon, 359 U. S., at 244. Guss and Garmon recognize, therefore, that in areas that Congress decides require national uniformity of regulation, Congress may exercise power to exclude any state regulation, even if harmonious. But nothing remotely resembling the NLRA scheme is to be found in the INA.

       “Little aid can be derived from the vague and illusory but often repeated formula that Congress ‘by occupying the field’ has excluded from it all state legislation. Every Act of Congress occupies some field, but we must know the boundaries of that field before we can say that it has precluded a state from the exercise of any power reserved to it by the Constitution. To discover the boundaries we look to the federal statute itself, read in the light of its constitutional setting and its legislative history.” Hines v. Davidowitz, 312 U. S. 52, 78-79 (1941) (Stone, J., dissenting).

       A construction of the proviso as not immunizing an employer who knowingly employs illegal aliens may be possible, and we imply no view upon the question. As will appear infra, other federal law that criminalizes knowing employment of illegal aliens in the agricultural field sanctions “appropriate” state laws criminalizing the same conduct. Accordingly, neither the proviso to 8 U. S. C. § 1324 (a) nor Congress’ failure to enact general laws criminalizing knowing employment of illegal aliens justifies an inference of congressional intent to pre-empt all state regulation in the employment area. Indeed, Congress’ failure to enact such general sanctions reinforces the inference that may be drawn from other congressional action that Congress believes this problem does not yet require uniform national rules and is appropriately addressed by the States as a local matter. The cited statutory provisions would, in any event, be relevant on remand in the analysis of actual or potential conflicts between §2805 and federal law. See also 8 U. S. C. §§1101 (a)(15)(H), 1182 (a)(14), 1321-1330.

       Title 7 U. S. C. §2044 (b)(6) (1970 ed., Supp. IV) provides:
      “Upon notice and hearing in accordance with regulations prescribed by him, the Secretary may refuse to issue, and may suspend, revoke, or refuse to renew a certificate of registration to any farm labor contractor if he finds that such contractor—
      “(6) has recruited, employed, or utilized with knowledge, the services of any person, who is an alien not lawfully admitted for permanent residence, or who has not been authorized by the Attorney General to accept employment...

      Title 7 U. S. C. § 2045 (f) (1970 ed., Supp. IV) provides:
      “Every farm labor contractor shall—
      “(f) refrain from recruiting, employing, or utilizing, with knowledge, the services of any person, who is an alien not lawfully admitted for permanent residence or who has not been authorized by the Attorney General to accept employment . . .

      Violations of the Act are made criminal, and aggrieved persons are accorded the right to civil relief.

       The Solicitor General, in his Memorandum for the United States as Amicus Curiae 4 n. 4, concedes that the “Act contemplates some limited room for state law,” but argues that § 2805 is not “appropriate” in light of various alleged conflicts with federal regulation.

       It would appear the regulations were not before the Superior Court since that court held § 2805 (a) to be in conflict with federal immigration laws, stating:
      “[T]he statute forbids hiring of an ‘alien who is not entitled to lawful residence in the United States,’ and under the U. S. Immigration laws, there are many such aliens who may work in the United States, under certain classifications, and Labor Code 2805 is in direct conflict with Federal Law.” App. 18a.

        Dolores Canning Co. v. Howard quotes the definition in a footnote, 40 Cal. App. 3d, at 677 n. 3, 115 Cal. Rptr., at 436 n. 3, but the opinion states nothing respecting its significance in construing §2805 (a).


source: Caselaw Access Project

license: Public Domain

text:
    GREAT ATLANTIC & PACIFIC TEA CO., INC. v. COTTRELL, HEALTH OFFICER OF MISSISSIPPI
    No. 74-1148.
    Argued December 1, 1975
    Decided February 25, 1976

      Brennan, J., delivered the opinion of the Court, in which all Members joined except Stevens, J., who took no part in the consideration or decision of the case.

      Walter W. Christy argued the cause for appellant. On the brief was Samuel Lang.

      Heber Ladner, Jr., argued the cause for appellee. With him on the brief was A. F. Summer, Attorney General of Mississippi, and Hugo Newcomb, Assistant Attorney General.
   Mr. Justice Brennan

delivered the opinion of the Court.

Section 11 of Mississippi’s Regulation Governing the Production and Sale of Milk and Milk Products in Mississippi, promulgated by the Mississippi State Board of Health (1967), provides, among other things, that “[m]ilk and milk products from . . . [another State] may be sold in . . . Mississippi. . . provided . . . that the regulatory agency [of the other State that] has jurisdiction accepts Grade A milk and milk products produced and processed in Mississippi on a reciprocal basis.” The question presented by this case is whether Mississippi, consistently with the Commerce Clause, Art. I, § 8, cl. 3, of the Constitution, may, pursuant to this regulation, constitutionally deny a Louisiana milk producer the right to sell in Mississippi milk satisfying Mississippi’s health standards solely because the State of Louisiana has not signed a reciprocity agreement with the State of Mississippi as required by the regulation. A three-judge District Court in the Southern District of Mississippi rejected appellant’s Commerce Clause challenge, holding that “[sjection 11 is within the permissible limits of state police powers even though it incidentally or indirectly involves or burdens interstate commerce.” 383 F. Supp. 569, 575 (1974). We noted probable jurisdiction of appellant’s appeal, 421 U. S. 961 (1975). We reverse.

I

Appellant, The Great Atlantic & Pacific Tea Co., Inc. (A&P), a Maryland corporation, owns and operates 38 outlets in Mississippi that engage in the retail sale of milk and milk products. A&P also operates at Kent-wood, La., a plant for the processing of raw milk into milk and milk products for delivery to its retail outlets. A&P invested over $1 million in the Kentwood processing facilities, intending that part of the dairy products produced at the facility would supply its retail outlets in Mississippi. However, A&P’s application on August 28, 1972, to the Mississippi State Board of Health for a permit to distribute the products from its Kentwood facility for sale in Mississippi was denied by the Board because A&P failed to submit the reciprocal agreement between Louisiana and Mississippi required by § 11. Appellant thereupon brought this action.

Evidence was stipulated before the District Court which conclusively established that the milk produced at the Kentwood plant fully complied with the requirements of § 11 in all respects save the required reciprocity agreement. The Kentwood plant had received milk sanitation-compliance ratings in excess of 90% in all respects following each inspection by Louisiana officials. These sanitation-compliance ratings were published in the Sanitation Compliance and Enforcement Ratings of Interstate Milk Shippers, a list compiled by the Public Health Service and the Food and Drug Administration of the United States Department of Health, Education, and Welfare (HEW), which includes only processors receiving compliance ratings from state officials who have been certified by the Public Health Service. Further, the parties stipulated that the Supervisor of the Milk Control Program of the Mississippi State Board of Health testified, on the basis of an inspection by Louisiana officials of the Kentwood plant reported on an HEW form, that Kentwood milk would be acceptable in Mississippi as the Louisiana regulations were substantially equivalent to Mississippi’s within the meaning of §11. Thus only the lack of a reciprocity agreement between the two States prevented appellant from marketing its Kentwood milk at its Mississippi retail outlets.

II

Mississippi’s answer to appellant’s Commerce Clause challenge is that the reciprocity requirement of § 11 is a reasonable exercise of its police power over local affairs, designed to assure the distribution of healthful milk products to the people of its State. We begin our analysis by again emphasizing that “[t]he very purpose of the Commerce Clause was to create an area of free trade among the several States.” McLeod v. J. E. Dilworth Co., 322 U. S. 327, 330 (1944). And at least since Cooley v. Board of Wardens, 12 How. 299 (1852), it has been clear that “the Commerce Clause was not merely an authorization to Congress to enact laws for the protection and encouragement of commerce among the States, but by its own force created an area of trade free from interference by the States. . . . [T]he Commerce Clause even without implementing legislation by Congress is a limitation upon the power of the States.” Freeman v. Hewit, 329 U. S. 249, 252 (1946). It is no less true, of course, that under our constitutional scheme the States retain “broad power” to legislate protection for their citizens in matters of local concern such as public health, H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 531-532 (1949), and that not every exercise of local power is invalid merely because it affects in some way the flow of commerce between the States. Freeman v. Hewit, supra, at 253; Milk Control Board v. Eisenberg Farm Products, 306 U. S. 346, 351-352 (1939). Rather, in areas where activities of legitimate local concern overlap with the national interests expressed by the Commerce Clause — where local and national powers are concurrent— the Court in the absence of congressional guidance is called upon to make “delicate adjustment of the conflicting state and federal claims,” H. P. Hood & Sons, Inc. v. Du Mond, supra, at 553 (Black, J., dissenting), thereby attempting “the necessary accommodation between local needs and the overriding requirement of freedom for the national commerce.” Freeman v. Hewit, supra, at 253. In undertaking this task the Court, if it finds that a challenged exercise of local power serves to further a legitimate local interest but simultaneously burdens interstate commerce, is confronted with a problem of balance:

“Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U. S. 440, 443. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.” Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970).

Adjudication of Commerce Clause challenges to the validity of local milk regulations burdening interstate milk is not a novel experience for this Court. See, e. g., Polar Ice Cream & Creamery Co. v. Andrews, 375 U. S. 361 (1964); Dean Milk Co. v. Madison, 340 U. S. 349 (1951); H. P. Hood & Sons, Inc. v. Du Mond, supra; Milk Control Board v. Eisenberg Farm Products, supra; Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511 (1935).

The District Court seems to have concluded that Dean Milk Co. v. Madison, supra, while especially pertinent to a decision upon the validity of the reciprocity provision of § 11, did not require the conclusion that the requirement rendered the section violative of the Commerce Clause. We disagree. Dean Milk involved a Madison, Wis., ordinance that forbade the sale of milk in the city unless it had been pasteurized and bottled at an approved plant located within five miles of the center of the city. Although agreeing that sanitary regulation of milk originating in remote areas is a “ 'matter . . . which may appropriately be regulated in the interest of the safety, health and well-being of local communities,'” 340 U. S., at 353, the Court held that the Madison ordinance could not withstand challenge under the Commerce Clause, “even in the exercise of [the city’s] unquestioned power to protect the health and safety of its people, if reasonable nondiscriminatory alternatives, adequate to conserve legitimate local interests, are available.” Id., at 354. Inquiry whether adequate and less burdensome alternatives exist is, of course, important in discharge of the Court’s task of “accommodation” of conflicting local and national interests, since any “ ‘realistic’ judgment” whether a given state action “unreasonably” trespasses upon national interests must, of course, consider the “consequences to the state if its action were disallowed.” Dowling, Interstate Commerce and State Power, 27 Va. L. Rev. 1, 22 (1940).

Dean Milk identified as adequate to serve local interests, and yet less burdensome to the flow of interstate commerce, the alternatives of either inspection of the distant plants by city officials, or reliance on milk ratings obtained by officials in localities having standards as high as those of Madison, the enforcement of which could be verified by reliance on the United States Public Health Service’s system of checking local ratings. This latter alternative reflected the recommendation of the United States Public Health Service based on § 11 of the Model Milk Ordinance proposed by the Service, Dean Milk, supra, at 355 n. 5, that the local “health officer approve milk or milk products from distant points without his inspection if they are produced and processed under regulations equivalent to those of this ordinance, and if the milk or milk products have been awarded by the State control agency a rating of 90 percent or more on the basis of the Public Health Service rating method.” The Illinois producer’s milk involved in Dean Milk was processed in plants inspected by the public health authorities in Chicago on the basis of the Public Health Service rating method.

The District Court in the instant case acknowledged that “[i]nterestingly enough Section 11 of the Mississippi regulation, but for the reciprocal clause, is identical in every material aspect to Section 11 of the U. S. Pvblic Health Service Ordinance” discussed in Dean Milk. 383 F. Supp., at 574. Accordingly, the District Court concluded that § 11 was “free of any constitutional infirmity,” “insofar as it follows Section 11 of the U. S. Public Health Service Milk Ordinance.” Id., at 575. The District Court held further that the reciprocity clause of Mississippi’s § 11 — not found in HEW’s proposed Model Milk Ordinance § 11 — did not constitute a sufficient burden on interstate commerce to violate the Commerce Clause. Mississippi, said the District Court, may constitutionally “enforce its own standards, either through inspections at the source of the processed milk, although such may require o’’t-of-state inspections, or through reciprocal agreements . . .” and “[a]s long as Mississippi mutually exchanges standards of inspection with other states, there can be no burden on interstate trade.” 383 F. Supp., at 575. Further, said the District Court, “Mississippi adopted the reciprocity clause to avoid the expense of out-of-state inspections,” id., at 576, and offers reciprocity to all States without discrimination.

The fallacy in the District Court’s reasoning is that it attached insufficient significance to the interference effected by the clause upon the national interest in freedom for the national commerce, and attached too great significance to the state interests purported to be served by the clause. Although not in terms an absolute and universal bar to sales of out-of-state milk, which was the effect of the Madison ordinance invalidated in Dean Milk, the barrier of the reciprocity clause to sales of out-of-state milk in Mississippi has in this case also “in practical effect exclude[d] from distribution in [Mississippi] wholesome milk produced ... in [Louisiana].” 340 U. S., at 354. Only state interests of substantial importance can save § 11 in the face of that devastating effect upon the free flow of interstate milk.

Mississippi’s contention that the reciprocity clause serves its vital interests in maintaining the State’s health standards borders on the frivolous. The clause clearly does not do so in the sense of furthering Mississippi’s established milk quality standards. For, according to appellee, “§ 11 covenants that Mississippi will do the inspections, will certify them, and will accept a standard below that applicable to domestic producers if the forwarding state will do the same.” Brief for'Appellee 9. Thus, even if Louisiana’s standards were lower than Mississippi’s, the clause permits Louisiana milk to be admitted to Mississippi if Louisiana enters into á reciprocity agreement. The reciprocity clause thus disserves rather than promotes any higher Mississippi milk quality standards. Therefore this is a case where the “burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U. S., at 142.

Mississippi next argues that the reciprocity clause somehow enables Mississippi to assure itself that the reciprocating State’s (here Louisiana’s) health standards are the “substantial equivalent” of Mississippi’s. But even if this were true, and the premise may be disputed, there are means adequate to serve this interest that are substantially less burdensome on commerce, and, therefore, Dean Milk teaches that the burden of the mandatory reciprocity clause cannot be justified in view of the character of the local interest and these available methods of protecting it. In the absence of adequate assurance that the standards of a sister State, either as constituted or as applied, are substantially equivalent to its own, Mississippi has the obvious alternative of applying its own standards of inspection to shipments of milk from a nonreciprocating State. Dean Milk, 340 U. S., at 355, expressly supported the adequacy of this alternative: “[S]uch inspection is readily open to it without hardship for it could charge the actual and reasonable cost of such inspection to the importing producers and processors.” Cf. Evansville-Vanderburgh Airport Au thority District v. Delta Airlines, Inc., 405 U. S. 707 (1972).

Ill

Mississippi argues that apart from the putative health-related interests served by the clause, the reciprocity requirement is in effect a free-trade provision, advancing the identical national interest that is served by the Commerce Clause.

The argument is two-pronged. First, Mississippi argues that the reciprocity requirement serves to help eliminate “hypertechnical” inspection standards that vary between different States. Such hypertechnical standards are said to burden commerce by requiring costly duplicative or out-of-state inspection in instances where, for truly health-related purposes, the standards of the different States are “substantially equivalent.” The Court has recognized that mutually beneficial objectives may be promoted by voluntary reciprocity agreements, and that the existence of such an agreement between two or more States is not a per se violation of the Commerce Clause of which citizens of nonreciprocating States who do not receive the benefits conferred by the agreement may complain. See Kane v. New Jersey, 242 U. S. 160, 167-168 (1916); cf. Bode v. Barrett, 344 U. S. 583 (1953). But we have not held that acceptance of offered reciprocity is required from other States, see Kane v. New Jersey, supra, at 168, or that a State may threaten complete isolation as the alternative to acceptance of its offer of reciprocity. Mississippi may offer reciprocity to States with substantially equivalent health standards, and insist on enforcement of its own, somewhat different, standards as the alternative. But Mississippi may not use the threat of economic isolation as a weapon to force sister States to enter into even a desirable reciprocity agreement.

The second prong of appellee’s argument that the reciprocity requirement promotes trade between the States draws upon Mississippi’s allegations that Louisiana is itself violating the Commerce Clause by refusing to admit milk produced in Mississippi. Mississippi asserts that Louisiana has refused reciprocity with Mississippi in bad faith, and in fact has erected economic barriers to the sale of Mississippi milk in Louisiana under the guise of health and inspection regulations. Hence, the reciprocity agreement, it is argued, is a legitimate means by which Mississippi may seek to gain access to Louisiana markets for its own producers as a condition to allowing Louisiana milk to be sold in Mississippi. We cannot agree.

First, to the extent, if any, that Louisiana is unconstitutionally burdening the flow of milk in interstate commerce by erecting and enforcing economic trade barriers to protect its own producers from competition under the guise of health regulations, the Commerce Clause itself creates the necessary reciprocity: Mississippi and its producers may pursue their constitutional remedy by suit in state or federal court challenging Louisiana’s actions as violative of the Commerce Clause.

Second, to the extent that Louisiana is legitimately exercising its local powers in the interest of the health of its citizens by refusing reciprocity and consequently the admission of milk deemed in good faith by state officials to be of insufficient quality, Mississippi is not privileged under the Commerce Clause to force its own judgments as to an adequate level of milk sanitation on Louisiana at the pain of an absolute ban on the interstate flow of commerce in milk. However available such methods in an international system of trade between wholly sovereign nation states, they may not constitutionally be employed by the States that constitute the common market created by the Framers of the Constitution. To allow Mississippi to insist that a sister State either sign a reciprocal agreement acceptable to Mississippi or else be absolutely foreclosed from exporting its products to Mississippi would plainly “invite a multiplication of preferential trade areas destructive of the very purpose of the Commerce Clause.” Dean Milk, 340 U. S., at 356. No “parochial legislative polic[y],” H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S., at 538, could be more precisely calculated to open “the door ... to rivalries and reprisals that were meant to be averted by subjecting commerce between the states to the power of the nation.” Baldwin v. G. A. F. Seelig, Inc., 294 U. S., at 522.

“The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” Id., at 523.

The mandatory reciprocity provision of § 11, insofar as justified by the State as an economic measure, is “precisely the kind of hindrance to the introduction of milk from other States . . . condemned as an ‘unreasonable clog upon the mobility of commerce. ... [It is] hostile in conception as well as burdensome in result.’ ” Polar Ice Cream & Creamery Co. v. Andrews, 375 U. S., at 377.

Accordingly, we hold that the mandatory character of the reciprocity requirement of § 11 unduly burdens the free flow of interstate commerce and cannot be justified as a permissible exercise of any state power. The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

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

       Section 11 provides in full text:
      “Milk and milk products from points beyond the limits of routine inspection of the state of Mississippi or its police jurisdiction, may be sold in the state of Mississippi or its police jurisdiction, provided they are produced, pasteurized, and labeled under regulations which are substantially equivalent to this' Regulation and have been awarded an acceptable milk sanitation compliance rating of 90 percent or above made by a state milk sanitation rating officer certified by the U. S. Public Health Service, and Provided further, that the regulatory agency who [sic] has jurisdiction accepts Grade A milk and milk products produced and processed in Mississippi on a reciprocal basis. The health authority is authorized to require and conduct laboratory analysis and investigations to determine if the milk and milk products are in compliance with this Regulation.” Record 102.

       The Commerce Clause, U. S. Const., Art. I, § 8, cl. 3, provides: “The Congress shall have power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

       Appellant also alleged a claim for relief under the Equal Protection Clause of the Fourteenth Amendment. In view of our conclusion we have no occasion to address that claim.

       A&P attempted but failed to obtain the required reciprocity agreement from the Louisiana health authorities. It was informed by Louisiana health officials that Louisiana had not entered into a reciprocity agreement with any State, that in the opinion of Louisiana officials processed milk from Mississippi did not meet Louisiana health standards, and that Mississippi-processed milk from plants that met Louisiana standards would be admitted for sale in Louisiana. Record 15.

       Appellee makes no contention that there are alternative means by which appellant’s milk may be judged qualified under Mississippi standards and thereby admitted for sale in the State. Indeed, appellee states that without reciprocity, milk from the Kentwood plant must be subjected to on-site inspection according to Mississippi health standards, and that Mississippi currently makes no provision for out-of-state inspection by Mississippi officials. Brief for Appellee 15-16, n. 1.

       Adjudication entails “emphasis upon the concrete elements of the situation that concerns both state and national interests. The particularities of a local statute touch its special aims and the scope of their fulfillment, the difficulties which it seeks to adjust, the price at which it does so. . . . [P]raetical considerations, however screened by doctrine, underlie resolution of conflicts between state and national power.” F. Frankfurter, The Commerce Clause Under Marshall, Taney and Waite 33-34 (1937).
      “[I]t seems clear that those interferences [with interstate commerce] not deemed forbidden are to be sustained . . . because a consideration of all the facts and circumstances, such as the nature of the regulation, its function, the character of the business involved and the actual effect on the flow of commerce, lead to the conclusion that the regulation concerns interests peculiarly local and does not infringe the national interest in maintaining the freedom of commerce across state lines.” Di Santo v. Pennsylvania, 273 U. S. 34, 44 (1927) (Stone, J., dissenting).

       The parties stipulated in the District Court that the net annual cost to A&P incurred by its inability to use the product of its Kent-wood facility and its consequent reliance on alternative sources of supply was $195,700.

       “If Louisiana will not give trust and reliance to Mississippi’s conduct of the inspections, then Mississippi is loath to accept the same Louisiana procedures, out of a regard for the health and welfare of her own citizens.” Brief for Appellee 11.

       A sample reciprocity agreement acceptable to Mississippi is the following:
      “AN ACCEPTABLE AGREEMENT TO MISSISSIPPI STATE BOARD OF HEALTH REGARDING RECIPROCITY IN THE MOVEMENT OF GRADE A MILK AND MILK PRODUCTS IN INTERSTATE SHIPMENT
      “1. Each state shall be responsible for inspecting, sampling, and enforcing its regulations that apply to the dairies and milk plants located in its respective state, provided each state’s regulation is substantially equivalent.
      “2. The appropriate state regulatory agency shall certify to the receiving state agency that the dairies and plants involved in interstate shipment hold a valid Grade A permit from said agency.
      “3. Milk and milk products received into each state shall meet the chemical and bacteriological standards, labeling and delivery vehicle requirements of the receiving state.
      “4. Public health sanitation ratings shall be made by certified rating officials of the respective states of any milk supply involved in interstate shipment. The ratings shall be submitted to the FDA-PHS to be included and maintained on the Interstate Milk Shippers List and published by the FDA-PHS so that they can make spot check ratings of the supplies involved to determine if satisfactory sanitation surveillance is being carried out by the respective state. All sanitation ratings shall be 90% in compliance or above in order to be acceptable to the respective states.

        “5. The regulatory agencies of each state shall sign reciprocity agreements containing the above stipulations.”

       On this record, we are not presented with and need not decide the question of the constitutionality under the Commerce Clause of a State's insistence on reinspection of milk originating in a foreign State where that insistence is not prompted by a health-related need to assure adequate standards but rather is prompted solely as a retaliatory measure because the foreign State refuses to accept the receiving State’s standards as adequate.

       Mississippi’s regulations call for inspection of “each dairy farm, milk hauler, milk plant, receiving station, and transfer station whose milk or milk products are intended for consumption within the State of Mississippi” as a condition to the issuance of a permit, and for periodic inspection thereafter. Miss. Reg. § 5, Record 77. Although appellant’s Kentwood plant is, of course, located outside Mississippi and would require out-of-state inspection by Mississippi officials, only six of 105 dairy farms from which A&P purchases raw milk are located outside Mississippi. Plaintiff’s Exhibit 1, and Exhibit A.

      Appellant represents that it has already offered to pay the reasonable expenses of required out-of-state inspection, Brief for Appellant 7, although evidence of that offer does not appear in the record.

       “[W]e say this regulation is wiser and more productive for interstate commerce through all the States than having these picayune problems of how many square feet of floor, space is in the milk parlor, or what the temperature of the milk is when it goes to the cooling truck.” Tr. of Oral Arg. 20.
      A&P agrees that reciprocity among States is a “laudable goal. Reciprocity, by eliminating hyper-technical standards peculiar to one state, may aid the free flow of milk.” Jurisdictional Statement 9.

       We are not called upon to decide in this case whether or at what point the diversionary effects upon trade occasioned by a given reciprocity agreement (even though voluntary and nondiscriminatory) between some but not all States might be such as to constitute an impermissible burdening of the national interests embodied in the Commerce Clause, or the Compact Clause. Cf. Bode v. Barrett, 344 U. S., at 586; Wharton v. Wise, 153 U. S. 155, 171 (1894).


author: Per Curiam.

text:
    FISHER v. DISTRICT COURT OF THE SIXTEENTH JUDICIAL DISTRICT OF MONTANA, IN AND FOR THE COUNTY OF ROSEBUD
    No. 75-5366.
    Decided March 1, 1976
   Per Curiam.

Disagreeing with an advisory opinion of the Appellate Court of the Northern Cheyenne Tribe, the Montana Supreme Court held that the state court has jurisdiction over an adoption proceeding in which all parties are members of the Tribe and residents of the Northern Cheyenne Indian Reservation. We reverse.

Petitioner is the mother of Ivan Fireerow. On July 1, 1969, after petitioner and Ivan’s father were divorced, the Tribal Court of the Northern Cheyenne Tribe found that petitioner had neglected Ivan, awarded temporary custody to Josephine Runsabove, and made Ivan a ward of the court. In 1973 the Tribal Court rejected petitioner’s request to regain custody of her son. On August 30,1974, however, the Tribal Court entered an order granting petitioner temporary custody of Ivan “for a period of six weeks during the summer months.”

Four days before the entry of that order, Josephine Runsabove and her husband initiated an adoption proceeding in the District Court for the Sixteenth Judicial District of Montana. Petitioner moved to dismiss for lack of subject-matter jurisdiction, asserting that the Tribal Court possessed exclusive jurisdiction. After a hearing, the District Court certified to the Appellate Court of the Northern Cheyenne Tribe the question whether an ordinance of the Northern Cheyenne Tribe conferred jurisdiction upon the District Court. The Appellate Court of the Tribe expressed the opinion that it did not, and the State District Court dismissed for lack of jurisdiction.

The Runsaboves then filed an original application in the Montana Supreme Court for a writ of supervisory control or other appropriate writ to set aside the order of dismissal. The Montana Supreme Court granted the requested relief, holding that the District Court possessed jurisdiction. The court reasoned that prior to the organization of the Northern Cheyenne Tribe in 1935, the Montana courts possessed jurisdiction over adoptions involving tribal members residing on the reservation and that this jurisdiction could not be unilaterally divested by tribal ordinance; that Congress recognized that jurisdiction of state courts over Indian adoptions in 25 U. S. C. § 372a; and that depriving the Montana courts of jurisdiction would deny equal protection to Indian plaintiffs, at least under the Montana Constitution. State ex rel. Firecrow v. District Court, - Mont. -, 536 P. 2d 190 (1975).

In litigation between Indians and non-Indians arising out of conduct on an Indian reservation, resolution of conflicts between the jurisdiction of state and tribal courts has depended, absent a governing Act of Congress, on “whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.” Williams v. Lee, 358 U. S. 217, 220 (1959); accord, Kennedy v. District Court of Montana, 400 U. S. 423, 426-427 (1971) (per curiam). Since this litigation involves only Indians, at least the same standard must be met before the state courts may exercise jurisdiction. Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148 (1973); McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 168-173, 179-180 (1973).

The right of the Northern Cheyenne Tribe to govern itself independently of state law has been consistently protected by federal statute. As early as 1877, Congress ratified an agreement between the Tribe and the United States providing that “Congress shall, by appropriate legislation, secure to [the Indians] an orderly government; they shall be subject to the laws of the United States, and each individual shall be protected in his rights of property, person, and life.” 19 Stat. 256. This provision remained unaffected by the Act enabling Montana to enter the Union, and by the other statutes specifically concerned with the Northern Cheyenne Tribe. In 1935, the Tribe adopted a constitution and bylaws pursuant to § 16 of the Indian Reorganization Act, 48 Stat. 987, 25 U. S. C. § 476, a statute specifically intended to encourage Indian tribes to revitalize their self-government. Mescolero Apache Tribe, supra, at 151. Acting pursuant to the constitution and bylaws, the Tribal Council of the Northern Cheyenne Tribe established the Tribal Court and granted it jurisdiction over adoptions “among members of the Northern Cheyenne Tribe.”

State-court jurisdiction plainly would interfere with the powers of self-government conferred upon the Northern Cheyenne Tribe and exercised through the Tribal Court. It would subject a dispute arising on the reservation among reservation Indians to a forum other than the one they have established for themselves. As the present record illustrates, it would create a substantial risk of conflicting adjudications affecting the custody of the child and would cause a corresponding decline in the authority of the Tribal Court.

No federal statute sanctions this interference with tribal self-government. Montana has not been granted, nor has it assumed, civil jurisdiction over the Northern Cheyenne Indian Reservation, either under the Act of Aug. 15, 1953, 67 Stat. 588, or under Title IV of the Civil Rights Act of 1968, 82 Stat. 78, 25 U. S. C. § 1321 et seq. And contrary to the Runsaboves’ contention, 25 U. S. C. § 372a manifests no congressional intent to confer jurisdiction upon state courts over adoptions by-Indians. The statute is concerned solely with the documentation necessary to prove adoption by an Indian in proceedings before the Secretary of the Interior. It recognizes adoption “by a judgment or decree of a State court” as one means of documentation but nowhere addresses the jurisdiction of state courts to render such judgments or decrees. The statute does not confer jurisdiction upon the Montana courts. See McClanahan, 411 U. S., at 174-175; Williams, 358 U. S., at 220-221.

Since the adoption proceeding is appropriately characterized as litigation arising on the Indian reservation, the jurisdiction of the Tribal Court is exclusive. The Runsaboves have not sought to defend the state court’s jurisdiction by arguing that any substantial part of the conduct supporting the adoption petition took place off the reservation. Cf. DeCoteau v. District County Court, 420 U. S. 425, 428-430, and n. 3 (1975).

The remaining points may be dealt with briefly. The Runsaboves argue that the ordinances of the Northern Cheyenne Tribe could not deprive the Montana courts of the jurisdiction they exercised over tribal matters prior to organization of the Tribe in 1935. The tribal ordinance conferring jurisdiction on the Tribal Court was authorized by § 16 of the Indian Reorganization Act, 25 U. S. C. § 476. Consequently, it implements an overriding federal policy which is clearly adequate to defeat state jurisdiction over litigation involving reservation Indians. Accordingly, even if we assume that the Montana courts properly exercised adoption jurisdiction prior to the organization of the Tribe, a question we do not decide, that jurisdiction has now been pre-empted.

Finally, we reject the argument that denying the Runs-aboves access to the Montana courts constitutes impermissible racial discrimination. The exclusive jurisdiction of the Tribal Court does not derive from the race of the plaintiff but rather from the quasi-sovereign status of the Northern Cheyenne Tribe under federal law. Moreover, even if a jurisdictional holding occasionally results in denying an Indian plaintiff a forum to which a non-Indian has access, such disparate treatment of the Indian is justified because it is intended to benefit the class of which he is a member by furthering the congressional policy of Indian self-government. Morton v. Mancari, 417 U. S. 535, 551-555 (1974).

The motion of the Northern Cheyenne Tribe for leave to file a brief, as amicus curiae, is granted. The petition for certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Supreme Court of Montana is reversed.

It is so ordered.

       See State ex rel. Firecrow v. District Court, — Mont. —, —, 536 P. 2d 190, 192 (1975).

         In re Firecrow (Northern Cheyenne Tribal Ct., filed Aug. 1, 1973). Defendant’s Exhibit C.

         In re Firecrow (Northern Cheyenne Tribal Ct., filed Aug. 30, 1974). Defendant’s Exhibit A.

         They alleged that petitioner had voluntarily abandoned the child to Josephine Runsabove on June 2, 1969, and had not supported the child for over a year. The natural father consented to the adoption and waived further notice.

       Chapter 3, § 2, of the Revised Law and Order Ordinances of the Northern Cheyenne Tribe of the Northern Cheyenne Reservation, approved by the Commissioner of Indian Affairs, June 9, 1966. The ordinance provides:
      “The Tribal Court of the Northern Cheyenne Reservation shall have jurisdiction to hear, pass upon, and approve applications for adoptions among members of the Northern Cheyenne 'Tribe.
      “Upon proper showing and decision by the court, such adoptions shall be binding upon all concerned and hereafter only adoptions so approved by the Tribal Court shall be recognized.
      “On all adoptions involving non-members of the Northern Cheyenne Tribe or non-Indians or both who wish to adopt a member of the Northern Cheyenne Tribe, the Tribal Court of the Northern Cheyenne Reservation shall have concurrent jurisdiction to hear, pass upon, and approve applications for adoption and upon written consent of the court, adoption proceedings affecting members of the Northern Cheyenne Tribe of the Northern Cheyenne Reservation may be tafeen up and consummated in the State Courts.”

       The opinion of the Appellate Court of the Northern Cheyenne Tribe reads, in relevant part:
      “It is the opinion of this Court, and this Court so rules, that the Tribal Court has exclusive jurisdiction of all adoptions of members of the Northern Cheyenne Tribe of Indians where it appears that the minor who is being adopted and all other parties to the adoption proceedings, which is to say, the parent and/or parents of the minor and the person and/or persons adopting said minor are each and all members of the Northern Cheyenne Tribe and each and all reside within the exterior boundaries of the Northern Cheyenne Indian Reservation.
      “This Court has not been called upon to decide any issue involving non-members of the Northern Cheyenne Tribe or non-Indians or both, who wish to adopt a member of the Northern Cheyenne Tribe. Therefore, this Court does not make any opinion or interpretation as to the provisions of the last (3rd) paragraph of said Section 1 of Chapter III of the Tribal Code.” In re Firecrow, at 5 (filed Apr. 12, 1975).

       The writ of supervisory control issued by the Montana Supreme Court is a final judgment within our jurisdiction under 28 U. S. C. § 1257 (3). It is available only in original proceedings in. the Montana Supreme Court, Mont. Const., Art. VII, §§2(1), (2); Mont. Rule App. Civ. Proc. 17 (a), and although it may issue in a broad range of circumstances, it is not equivalent to an appeal. See ibid.; State ex rel. Amsterdam Lumber, Inc. v. District Court, 163 Mont. 182, 186-187, 516 P. 2d 378, 380-381 (1973); Walker v. Tschache, 162 Mont. 213, 215-217, 510 P. 2d 9, 10-11 (1973). A judgment that terminates original proceedings in a state appellate court, in which the only issue decided concerns the jurisdiction of a lower state court, is final, even if further proceedings are to be had in the lower court. Madruga v. Superior Court, 346 U. S. 556, 557 n. 1 (1954); Rescue Army v. Municipal Court, 331 U. S. 549, 565-568 (1947); Bandini Co. v. Superior Court, 284 U. S. 8, 14-15 (1931); see Costarelli v. Massachusetts, 421 U. S. 193, 197-199 (1975) (per curiam).

       Act of Feb. 22, 1889, 25 Stat. 676. Section 4 (2) of the Act provides that “Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States ....’’ For an interpretation of this provision, and similar language in other statehood enabling Acts, see McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 175-176, and n. 15 (1973); Organized Village of Kake v. Egan, 369 U. S. 60, 69-71 (1962).

       The Northern Cheyenne Tribe first came under federal trusteeship by the Treaty of May 10, 1868, 15 Stat. 655, which was subsequently modified by the agreement quoted in text. The Northern Cheyenne Indian Reservation was created by Executive Orders on November 26, 1884, and March 19, 1900, 1 C. Kapp-ler, Indian Affairs 860-861 (1904), and it was confirmed as property of the Tribe held in trust by the United States by the Act of June 3, 1926, c. 459, 44 Stat. pt. 2, 690. None of the cited sources grants jurisdiction to Montana.

       Constitution and bylaws of the Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, approved by the Secretary of the Interior, Nov. 23, 1935. These have since been superseded by the Amended Constitution and By-Laws of the Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, approved by the Assistant Secretary of the Interior, July 8, 1960.

       C. 3, §2, of the Revised Law and Order Ordinances of the Northern Cheyenne Tribe of the Northern Cheyenne Reservation. Quoted at n. 5, supra.

      The third paragraph of § 2 does not confer jurisdiction over this case upon the Montana courts. By its express terms, it confers concurrent jurisdiction only over “adoptions involving non-members of the Northern Cheyenne Tribe or non-Indians or both who wish to adopt a member of the Northern Cheyenne Tribe,” see n. 5, supra, and only upon written consent of the Tribal Court.

       Neither the constitution and bylaws nor the ordinance of the Northern Cheyenne Tribe manifests an intent to cede jurisdiction to Montana. This factor alone distinguishes the decisions upon which the Montana Supreme Court relied. Bad Horse v. Bad Horse, 163 Mont. 445, 450-451, 517 P. 2d 893, 896, cert. denied, 419 U. S. 847 (1974); State ex rel. Iron Bear v. District Court, 162 Mont. 335, 337-338, 342-343, 512 P. 2d 1292, 1294, 1297 (1973). We do not decide, however, whether an enactment of a tribal council prior to the effective date of Pub. L. 280, Act of Aug. 15, 1953, 67 Stat. 588, may be sufficient to confer jurisdiction upon the state courts. See Kennerly v. District Court of Montana, 400 U. S. 423, 426-429 (1971) (per curiam); McClanahan v. Arizona State Tax Comm’n, supra, at 179-180.

       Act of July 8, 1940, c. 555, §§ 1, 2, 54 Stat. 746. The statute provides:
      “[Sec. 1] [I]n probate matters under the exclusive jurisdiction of the Secretary of the Interior, no person shall be recognized as an heir of a deceased Indian by virtue of an adoption—
      “(1) Unless such adoption shall have been—
      “(a) by a judgment or decree of a State court;
      “(b) by a judgment or decree of an Indian court;-
      “(c) by a written adoption approved by the superintendent of the agency having jurisdiction over the tribe of which either the adopted child or the adoptive parent is a member, and duly recorded in a book kept by the superintendent for that purpose; or
      “(d) by an adoption in accordance with a procedure established by the tribal authority, lecognized by the Department of the Interior, of the tribe either of the adopted child or the adoptive parent, and duly recorded in a book kept by the tribe for that purpose; or
      “(2) Unless such adoption shall have been recognized by the Department of the Interior prior to the effective date of this Act or in the distribution of the estate of an Indian who has died prior to that date: Provided, That an adoption by Indian custom made prior to the effective date of this Act may be made valid by recordation with the superintendent if both the adopted child and the adoptive parent are still living, if the adoptive parent requests that the adoption be recorded, and if the adopted child is an adult and makes such a request or the superintendent on behalf of a minor child approves of the recordation.
      “Sec. 2. This Act shall not apply with respect to the distribution of the estates of Indians of the Five Civilized Tribes or the Osage Tribe in the State of Oklahoma, or with respect to the distribution of estates of Indians who have died prior to the effective date of this Act.”

       The Runsaboves alleged as grounds for adoption that petitioner had abandoned Ivan and given custody to Josephine Runs-above and that petitioner had not supported the child for over a year. Since all parties resided on the reservation at all relevant times, and since the reservation has not been partially terminated, cf. DeCoteau v. District County Court, 420 U. S., at 429 n. 3, it appears that none of the acts giving rise to the adoption proceedings occurred off the reservation. The Runsaboves do not contend otherwise. They do, however, point out that the birth of Ivan and the marriage and divorce of his parents occurred off the reservation. These facts do not affect our conclusion that the adoption proceeding is within the Tribal Court’s exclusive jurisdiction. In a proceeding such as an adoption, which determines the permanent status of litigants, it is appropriate to predicate jurisdiction on the residence of the litigants rather than the location of particular incidents of marginal relevance, at best.