source: Caselaw Access Project

author: Justice White Justice Stevens,

license: Public Domain

text:
    CALIFORNIA et al. v. CABAZON BAND OF MISSION INDIANS et al.
    No. 85-1708.
    Argued December 9, 1986
    Decided February 25, 1987

      White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, Marshall, Blackmun, and Powell, JJ., joined. Stevens, J., filed a dissenting opinion, in which O’Connor and Scalia, JJ., joined, post, p. 222.

      Roderick E. Walston, Supervising Deputy Attorney General of California, argued the cause for appellants. With him on the briefs were John K. Van de Kamp, Attorney General,
      Steve White, Chief Assistant Attorney General, Frederick R. Millar, Jr., Supervising Deputy Attorney General, Rudolph Corona, Jr., Deputy Attorney General, Gerald J. Geerlings, Peter H. Lyons, and Glenn R. Salter.

      Glenn M. Feldman argued the cause for appellees. With him on the brief were Barbara A. Karshmer and George Forman.

      Briefs of amici curiae urging reversal were filed for the State of Arizona et al. by Robert K. Corbin, Attorney General of Arizona, Anthony B. Ching, Solicitor General, Ian A. Macpherson, Brian McKay, Attorney General of Nevada, and Paul Bardacke, Attorney General of New Mexico; and for the State of Washington et al. by Kenneth 0. Eikenberry, Attorney General of Washington, Timothy R. Malone, Assistant Attorney General, Bronson C. La Follette, Attorney General of Wisconsin, and John J. Kelly, Chief State’s Attorney of Connecticut.
      Briefs of amici curiae urging affirmance were filed for the Chehalis Indian Tribe et al. by Henry J. Sockbeson and Stephen V. Quesenberry; for the Jicarilla Apache Tribe et al. by Alan R. Taradash; for the Oneida Indian Nation of New York by William W. Taylor III and Christine Nicholson; for the Pueblo of Sandia et al. by L. Lamar Parrish, Theodore W. Barudin, Michael D. Bustamante, and Scott E. Borg; for the San Manuel Band of Mission Indians by Jerome L. Levine and David A. Lash; and for the Seminole Tribe of Florida et al. by Bruce S. Rogow.

      Briefs of amici curiae were filed for the State of Minnesota by Hubert H. Humphrey III, Attorney General, and James M. Schoessler, Assistant Attorney General; for the Pueblo of Laguna et al. by W. Richard West, Jr., Thomas W. Fredericks, Rodney B. Lewis, Carol L. Barbero, John Bell, Rodney J. Edwards, and Art Bunce; and for the Tulalip Tribes of Washington et al. by Allen H. Sanders.

   Justice White

delivered the opinion of the Court.

The Cabazon and Morongo Bands of Mission Indians, federally recognized Indian Tribes, occupy reservations in Riverside County, California. Each Band, pursuant to an ordinance approved by the Secretary of the Interior, conducts bingo games on its reservation. The Cabazon Band has also opened a card club at which draw poker and other card games are played. The games are open to the public and are played predominantly by non-Indians coming onto the reservations. The games are a major source of employment for tribal members, and the profits are the Tribes’ sole source of income. The State of California seeks to apply to the two Tribes Cal. Penal Code Ann. § 326.5 (West Supp. 1987). That statute does not entirely prohibit the playing of bingo but permits it when the games are operated and staffed by members of designated charitable organizations who may not be paid for their services. Profits must be kept in special accounts and used only for charitable purposes; prizes may not exceed $250 per game. Asserting that the bingo games on the two reservations violated each of these restrictions, California insisted that the Tribes comply with state law. Riverside County also sought to apply its local Ordinance No. 558, regulating bingo, as well as its Ordinance No. 331, prohibiting the playing of draw poker and the other card games.

The Tribes sued the county in Federal District Court seeking a declaratory judgment that the county had no authority to apply its ordinances inside the reservations and an injunction against their enforcement. The State intervened, the facts were stipulated, and the District Court granted the Tribes’ motion for summary judgment, holding that neither the State nor the county had any authority to enforce its gambling laws within the reservations. The Court of Appeals for the Ninth Circuit affirmed, 783 F. 2d 900 (1986), the State and the county appealed, and we postponed jurisdiction to the hearing on the merits. 476 U. S. 1168.

H-l

The Court has consistently recognized that Indian tribes retain “attributes of sovereignty over both their members and their territory,” United States v. Mazurie, 419 U. S. 544, 557 (1975), and that “tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States,” Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 154 (1980). It is clear, however, that state laws may be applied to tribal Indians on their reservations if Congress has expressly so provided. Here, the State insists that Congress has twice given its express consent: first in Pub. L. 280 in 1953, 67 Stat. 588, as amended, 18 U. S. C. § 1162, 28 U. S. C. § 1360 (1982 ed. and Supp. Ill), and second in the Organized Crime Control Act in 1970, 84 Stat. 937, 18 U. S. C. § 1955. We disagree in both respects.

In Pub. L. 280, Congress expressly granted six States, including California, jurisdiction over specified areas of Indian country within the States and provided for the assumption of jurisdiction by other States. In §2, California was granted broad criminal jurisdiction over offenses committed by or against Indians within all Indian country within the State. Section 4’s grant of civil jurisdiction was more limited. In Bryan v. Itasca County, 426 U. S. 373 (1976), we interpreted § 4 to grant States jurisdiction over private civil litigation involving reservation Indians in state court, but not to grant general civil regulatory authority. Id., at 385, 388-390. We held, therefore, that Minnesota could not apply its personal property tax within the reservation. Congress’ primary concern in enacting Pub. L. 280 was combating lawlessness on reservations. Id., at 379-380. The Act plainly was not intended to effect total assimilation of Indian tribes into mainstream American society. Id., at 387. We recognized that a grant to States of general civil regulatory power over Indian reservations would result in the destruction of tribal institutions and values. Accordingly, when a State seeks to enforce a law within an Indian reservation under the authority of Pub. L. 280, it must be determined whether the law is criminal in nature, and thus fully applicable to the reservation under § 2, or civil in nature, and applicable only as it may be relevant to private civil litigation in state court.

The Minnesota personal property tax at issue in Bryan was unquestionably civil in nature. The California bingo statute is not so easily categorized. California law permits bingo games to be conducted only by charitable and other specified organizations, and then only by their members who may not receive any wage or profit for doing so; prizes are limited and receipts are to be segregated and used only for charitable purposes. Violation of any of these provisions is a misdemeanor. California insists that these are criminal laws which Pub. L. 280 permits it to enforce on the reservations.

Following its earlier decision in Barona Group of Capitan Grande Band of Mission Indians, San Diego County, Cal. v. Duffy, 694 F. 2d 1185 (1982), cert. denied, 461 U. S. 929 (1983), which also involved the applicability of §326.5 of the California Penal Code to Indian reservations, the Court of Appeals rejected this submission. 783 F. 2d, at 901-903. In Barona, applying what it thought to be the civil/criminal dichotomy drawn in Bryan v. Itasca County, the Court of Appeals drew a distinction between state “criminal/prohibitory” laws and state “civil/regulatory” laws: if the intent of a state law is generally to prohibit certain conduct, it falls within Pub. L. 280’s grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory and Pub. L. 280 does not authorize its enforcement on an Indian reservation. The shorthand test is whether the conduct at issue violates the State’s public policy. Inquiring into the nature of §326.5, the Court of Appeals held that it was regulatory rather than prohibitory. This was the analysis employed, with similar results, by the Court of Appeals for the Fifth Circuit in Seminole Tribe of Florida v. Butterworth, 658 F. 2d 310 (1981), cert. denied, 455 U. S. 1020 (1982), which the Ninth Circuit found persuasive.

We are persuaded that the prohibitory/regulatory distinction is consistent with Bryan’s construction of Pub. L. 280. It is not a bright-line rule, however; and as the Ninth Circuit itself observed, an argument of some weight may be made that the bingo statute is prohibitory rather than regulatory. But in the present case, the court reexamined the state law and reaffirmed its holding in Barona, and we are reluctant to disagree with that court’s view of the nature and intent of the state law at issue here.

There is surely a fair basis for its conclusion. California does not prohibit all forms of gambling. California itself operates a state lottery, Cal. Govt. Code Ann. §8880 et seq. (West Supp. 1987), and daily encourages its citizens to participate in this state-run gambling. California also permits parimutuel horse-race betting. Cal. Bus. & Prof. Code Ann. §§ 19400-19667 (West 1964 and Supp. 1987). Although certain enumerated gambling games are prohibited under Cal. Penal Code Ann. § 330 (West Supp. 1987), games not enumerated, including the card games played in the Cabazon card club, are permissible. The Tribes assert that more than 400 card rooms similar to the Cabazon card club flourish in California, and the State does not dispute this fact. Brief for

Appellees 47-48. Also, as the Court of Appeals noted, bingo is legally sponsored by many different organizations and is widely played in California. There is no effort to forbid the playing of bingo by any member of the public over the age of 18. Indeed, the permitted bingo games must be open to the general public. Nor is there any limit on the number of games which eligible organizations may operate, the receipts which they may obtain from the games, the number of games which a participant may play, or the amount of money which a participant may spend, either per game or in total. In light of the fact that California permits a substantial amount of gambling activity, including bingo, and actually promotes gambling through its state lottery, we must conclude that California regulates rather than prohibits gambling in general and bingo in particular.

California argues, however, that high stakes, unregulated bingo, the conduct which attracts organized crime, is a misdemeanor in California and may be prohibited on Indian reservations. But that an otherwise regulatory law is enforceable by criminal as well as civil means does not necessarily convert it into a criminal law within the meaning of Pub. L. 280. Otherwise, the distinction between § 2 and § 4 of that law could easily be avoided and total assimilation permitted. This view, adopted here and by the Fifth Circuit in the Butterworth case, we find persuasive. Accordingly, we conclude that Pub. L. 280 does not authorize California to enforce Cal. Penal Code Ann. §326.5 (West Supp. 1987) within the Cabazon and Morongo Reservations.

California and Riverside County also argue that the Organized Crime Control Act (OCCA) authorizes the application of their gambling laws to the tribal bingo enterprises. The OCCA makes certain violations of state and local gambling laws violations of federal law. The Court of Appeals rejected appellants’ argument, relying on its earlier decisions in United States v. Farris, 624 F. 2d 890 (CA9 1980), cert. denied, 449 U. S. 1111 (1981), and Barona Group of Capitan Grande Band of Mission Indians, San Diego County, Cal. v. Duffy, 694 F. 2d 1185 (1982). 783 F. 2d, at 903. The court explained that whether a tribal activity is “a violation of the law of a state” within the meaning of OCCA depends on whether it violates the “public policy” of the State, the same test for application of state law under Pub. L. 280, and similarly concluded that bingo is not contrary to the public policy of California.

The Court of Appeals for the Sixth Circuit has rejected this view. United States v. Dakota, 796 F. 2d 186 (1986). Since the OCCA standard is simply whether the gambling business is being operated in “violation of the law of a State,” there is no basis for the regulatory/prohibitory distinction that it agreed is suitable in construing and applying Pub. L. 280. 796 F. 2d, at 188. And because enforcement of OCCA is an exercise of federal rather than state authority, there is no danger of state encroachment on Indian tribal sovereignty. Ibid. This latter observation exposes the flaw in appellants’ reliance on OCCA. That enactment is indeed a federal law that, among other things, defines certain federal crimes over which the district courts have exclusive jurisdiction. There is nothing in OCCA indicating that the States are to have any part in enforcing federal criminal laws or are authorized to make arrests on Indian reservations that in the absence of OCCA they could not effect. We are not informed of any federal efforts to employ OCCA to prosecute the playing of bingo on Indian reservations, although there are more than 100 such enterprises currently in operation, many of which have been in existence for several years, for the most part with the encouragement of the Federal Government. Whether or not, then, the Sixth Circuit is right and the Ninth Circuit wrong about the coverage of OCCA, a matter that we do not decide, there is no warrant for California to make arrests on reservations and thus, through OCCA, enforce its gambling laws against Indian tribes.

I — ( I — l

Because the state and county laws at issue here are imposed directly on the Tribes that operate the games, and are not expressly permitted by Congress, the Tribes argue that the judgment below should be affirmed without more. They rely on the statement in McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 170-171 (1973), that “‘[s]tate laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply’ ” (quoting United States Dept, of the Interior, Federal Indian Law 845 (1958)). Our cases, however, have not established an inflexible per se rule pre-eluding state jurisdiction over tribes and tribal members in the absence of express congressional consent. “[UJnder certain circumstances a State may validly assert authority over the activities of nonmembers on a reservation, and . . . in exceptional circumstances a State may assert jurisdiction over the on-reservation activities of tribal members.” New Mexico v. Mescalero Apache Tribe, 462 U. S. 324, 331-332 (1983) (footnotes omitted).. Both Moe v. Confederated Salish and Kootenai Tribes, 425 U. S. 463 (1976), and Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134 (1980), are illustrative. In those decisions we held that, in the absence of express congressional permission, a State could require tribal smokeshops on Indian reservations to collect state sales tax from their non-Indian customers. Both cases involved nonmembers entering and purchasing tobacco products on the reservations involved. The State’s interest in assuring the collection of sales taxes from non-Indians enjoying the off-reservation services of the State was sufficient to warrant the minimal burden imposed on the tribal smokeshop operators.

This case also involves a state burden on tribal Indians in the context of their dealings with non-Indians since the question is whether the State may prevent the Tribes from making available high stakes bingo games to non-Indians coming from outside the reservations. Decision in this case turns on whether state authority is pre-empted by the operation of federal law; and “[s]tate jurisdiction is pre-empted ... if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority.” Mescalero, 462 U. S., at 333, 334. The inquiry is to proceed in light of traditional notions of Indian sovereignty and the congressional goal of Indian self-government, including its “overriding goal” of encouraging tribal self-sufficiency and economic development. Id., at 334-335. See also, Iowa Mutual Insurance Co. v. LaPlante, ante, p. 9; White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 143 (1980).

These are important federal interests. They were reaffirmed by the President’s 1983 Statement on Indian Policy. More specifically, the Department of the Interior, which has the primary responsibility for carrying out the Federal Government’s trust obligations to Indian tribes, has sought to implement these policies by promoting tribal bingo enterprises. Under the Indian Financing Act of 1974, 25 U. S. C. § 1451 et seq. (1982 ed. and Supp. Ill), the Secretary of the Interior has made grants and has guaranteed loans for the purpose of constructing bingo facilities. See S. Rep. No. 99-493, p. 5 (1986); Mashantucket Pequot Tribe v. McGuigan, 626 F. Supp. 245, 246 (Conn. 1986). The Department of Housing and Urban Development and the Department of Health and Human Services have also provided financial assistance to develop tribal gaming enterprises. See S. Rep. No. 99-493, supra, at 5. Here, the Secretary of the Interior has approved tribal ordinances establishing and regulating the gaming activities involved. See H. R. Rep. No. 99-488, p. 10 (1986). The Secretary has also exercised his authority to review tribal bingo management contracts under 25 U. S. C. §81, and has issued detailed guidelines governing that review. App. to Motion to Dismiss Appeal or Affirm Judgment 63a-70a.

These policies and actions, which demonstrate the Government’s approval and active promotion of tribal bingo enterprises, are of particular relevance in this case. The Caba-zon and Morongo Reservations contain no natural resources which can be exploited. The tribal games at present provide the sole source of revenues for the operation of the tribal governments and the provision of tribal services. They are also the major sources of employment on the reservations. Self-determination and economic development are not within reach if the Tribes cannot raise revenues and provide employment for their members. The Tribes’ interests obviously parallel the federal interests.

California seeks to diminish the weight of these seemingly important tribal interests by asserting that the Tribes are merely marketing an exemption from state gambling laws. In Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S., at 155, we held that the State could tax cigarettes sold by tribal smokeshops to non-Indians, even though it would eliminate their competitive advantage and substantially reduce revenues used to provide tribal services, because the Tribes had no right “to market an exemption from state taxation to persons who would normally do their business elsewhere.” We stated that “[i]t is painfully apparent that the value marketed by the smokeshops to persons coming from outside is not generated on the reservations by activities in which the Tribes have a significant interest.” Ibid. Here, however, the Tribes are not merely importing a product onto the reservations for immediate resale to non-Indians. They have built modern facilities which provide recreational opportunities and ancillary services to their patrons, who do not simply drive onto the reservations, make purchases and depart, but spend extended periods of time there enjoying the services the Tribes provide. The Tribes have a strong incentive to provide comfortable, clean, and attractive facilities and well-run games in order to increase attendance at the games. The tribal bingo enterprises are similar to the resort complex, featuring hunting and fishing, that the Mescalero Apache Tribe operates on its reservation through the “concerted and sustained” management of reservation land and wildlife resources. New Mexico v. Mesca-lero Apache Tribe, 462 U. S., at 341. The Mescalero project generates funds for essential tribal services and provides employment for tribal members. We there rejected the notion that the Tribe is merely marketing an exemption from state hunting and fishing regulations and concluded that New Mexico could not regulate on-reservation fishing and hunting by non-Indians. Ibid. Similarly, the Cabazon and Morongo Bands are generating value on the reservations through activities in which they have a substantial interest.

The State also relies on Rice v. Rehner, 463 U. S. 713 (1983), in which we held that California could require a tribal member and a federally licensed Indian trader operating a general store on a reservation to obtain a state license in order to sell liquor for off-premises consumption. But our decision there rested on the grounds that Congress had never recognized any sovereign tribal interest in regulating liquor traffic and that Congress, historically, had plainly anticipated that the States would exercise concurrent authority to regulate the use and distribution of liquor on Indian reservations. There is no such traditional federal view governing the outcome of this case, since, as we have explained, the current federal policy is to promote precisely what California seeks to prevent.

The sole interest asserted by the State to justify the imposition of its bingo laws on the Tribes is in preventing the infiltration of the tribal games by organized crime. To the extent that the State seeks to prevent any and all bingo games from being played on tribal lands while permitting regulated, off-reservation games, this asserted interest is irrelevant and the state and county laws are pre-empted. See n. 3, supra. Even to the extent that the State and county seek to regulate short of prohibition, the laws are preempted. The State insists that the high stakes offered at tribal games are attractive to organized crime, whereas the controlled games authorized under California law are not. This is surely a legitimate concern, but we are unconvinced that it is sufficient to escape the pre-emptive force of federal and tribal interests apparent in this case. California does not allege any present criminal involvement in the Cabazon and Morongo enterprises, and the Ninth Circuit discerned none. 783 F. 2d, at 904. An official of the Department of Justice has expressed some concern about tribal bingo operations, but far from any action being taken evidencing this concern — and surely the Federal Government has the authority to forbid Indian gambling enterprises — the prevailing federal policy continues to support these tribal enterprises, including those of the Tribes involved in this case.

We conclude that the State’s interest in preventing the infiltration of the tribal bingo enterprises by organized crime does not justify state regulation of the tribal bingo enterprises in light of the compelling federal and tribal interests supporting them. State regulation would impermissibly infringe on tribal government, and this conclusion applies equally to the county’s attempted regulation of the Cabazon card club. We therefore affirm the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Justice Stevens,

with whom Justice O’Connor and Justice Scalia join, dissenting.

Unless and until Congress exempts Indian-managed gambling from state law and subjects it to federal supervision, I believe that a State may enforce its laws prohibiting high-stakes gambling on Indian reservations within its borders. Congress has not pre-empted California’s prohibition against high-stakes bingo games and the Secretary of the Interior plainly has no authority to do so. While gambling provides needed employment and income for Indian tribes, these benefits do not, in my opinion, justify tribal operation of currently unlawful commercial activities. Accepting the majority’s reasoning would require exemptions for cockfighting, tattoo parlors, nude dancing, houses of prostitution, and other illegal but profitable enterprises. As the law now stands, I believe tribal entrepreneurs, like others who might derive profits from catering to non-Indian customers, must obey applicable state laws.

In my opinion the plain language of Pub. L. 280, 67 Stat. 588, as amended, 18 U. S. C. § 1162, 28 U. S. C. § 1360 (1982 ed. and Supp. Ill), authorizes California to enforce its prohibition against commercial gambling on Indian reservations. The State prohibits bingo games that are not operated by members of designated charitable organizations or which offer prizes in excess of $250 per game. Cal. Penal Code Ann. §326.5 (West Supp. 1987). In §2 of Pub. L. 280, Congress expressly provided that the criminal laws of the State of California “shall have the same force and effect within such Indian country as they have elsewhere within the State.” 18 U. S. C. § 1162(a). Moreover, it provided in § 4(a) that the civil laws of California “that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State.” 28 U. S. C. § 1360(a) (1982 ed., Supp. III).

It is true that in Bryan v. Itasca County, 426 U. S. 373 (1976), we held that Pub. L. 280 did not confer civil jurisdiction on a State to impose a personal property tax on a mobile home that was owned by a reservation Indian and located within the reservation. Moreover, the reasoning of that decision recognizes the importance of preserving the traditional aspects of tribal sovereignty over the relationships among reservation Indians. Our more recent cases have made it clear, however, that commercial transactions between Indians and non-Indians — even when conducted on a reservation — do not enjoy any blanket immunity from state regulation. In Rice v. Rehner, 463 U. S. 713 (1983), respondent, a federally licensed Indian trader, was a tribal member operating a general store on an Indian reservation. We held that the State could require Rehner to obtain a state license to sell liquor for off-premises consumption. The Court attempts to distinguish Rice v. Rehner as resting on the absence of a sovereign tribal interest in the regulation of liquor traffic to the exclusion of the States. But as a necessary step on our way to deciding that the State could regulate all tribal liquor sales in Indian country, we recognized the State’s authority over transactions, whether they be liquor sales or gambling, between Indians and non-Indians: “If there is any interest in tribal sovereignty implicated by imposition of California’s alcoholic beverage regulation, it exists only insofar as the State attempts to regulate Rehner’s sale of liquor to other members of the Pala Tribe on the Pala Reservation.” Id., at 721. Similarly, in Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134 (1980), we held that a State could impose its sales and cigarette taxes on non-Indian customers of smokeshops on Indian reservations.

Today the Court seems prepared to acknowledge that an Indian tribe’s commercial transactions with non-Indians may violate “the State’s public policy.” Ante, at 209. The Court reasons, however, that the operation of high-stakes bingo games does not run afoul of California’s public policy because the State permits some forms of gambling and, specifically, some forms of bingo. I find this approach to “public policy” curious, to say the least. The State’s policy concerning gambling is to authorize certain specific gambling activities that comply with carefully defined regulation and that provide revenues either for the State itself or for certain charitable purposes, and to prohibit all unregulated commercial lotteries that are operated for private profit. To argue that the tribal bingo games comply with the public policy of California because the State permits some other gambling is tantamount to arguing that driving over 60 miles an hour is consistent with public policy because the State allows driving at speeds of up to 55 miles an hour.

In my view, Congress has permitted the State to apply its prohibitions against commercial gambling to Indian tribes. Even if Congress had not done so, however, the State has the authority to assert jurisdiction over appellees’ gambling activities. We recognized this authority in Washington v. Confederated Tribes, supra; the Court’s attempt to distinguish the reasoning of our decision in that case is unpersuasive. In Washington v. Confederated Tribes, the Tribes contended that the State had no power to tax on-reservation sales of cigarettes to non-Indians. The argument that we rejected there has a familiar ring:

“The Tribes contend that their involvement in the operation and taxation of cigarette marketing on the reservation ousts the State from any power to exact its sales and cigarette taxes from nonmembers purchasing cigarettes at tribal smokeshops. The primary argument is economic. It is asserted that smokeshop cigarette sales generate substantial revenues for the Tribes which they expend for essential governmental services, including programs to combat severe poverty and underdevelopment at the reservations. Most cigarette purchasers are outsiders attracted onto the reservations by the bargain prices the smokeshops charge by virtue of their claimed exemption from state taxation. If the State is permitted to impose its taxes, the Tribes will no longer enjoy any competitive advantage vis-a-vis businesses in surrounding areas.” Id., at 154.
“What the smokeshops offer these customers, and what is not available elsewhere, is solely an exemption from state taxation.” Id., at 155.

In Confederated Tribes, the tribal smokeshops offered their customers the same products, services, and facilities that other tobacconists offered to their customers. Although the smokeshops were more modest than the bingo palaces involved in this case, presumably they were equally the product of tribal labor and tribal capital. What made them successful, however, was the value of the exemption that was offered to non-Indians “who would normally do their business elsewhere.” Id., at 155.

Similarly, it is painfully obvious that the value of the Tribe’s asserted exemption from California’s gambling laws is the primary attraction to customers who would normally do their gambling elsewhere. The Cabazon Band of Mission Indians has no tradition or special expertise in the operation of large bingo parlors. See Declaration of William J. Wallace, ¶2, App. 153, 171. Indeed, the entire membership of the Cabazon Tribe — it has only 25 enrolled members — is barely adequate to operate a bingo game that is patronized by hundreds of non-Indians nightly. How this small and formerly impoverished Band of Indians could have attracted the investment capital for its enterprise without benefit of the claimed exemption is certainly a mystery to me.

I am entirely unpersuaded by the Court’s view that the State of California has no legitimate interest in requiring ap-pellees’ gambling business to comply with the same standards that the operators of other bingo games must observe. The State’s interest is both economic and protective. Presumably the State has determined that its interest in generating revenues for the public fisc and for certain charities outweighs the benefits from a total prohibition against publicly sponsored games of chance. Whatever revenues the Tribes receive from their unregulated bingo games drain funds from the state-approved recipients of lottery revenues — just as the tax-free cigarette sales in the Confederated Tribes case diminished the receipts that the tax collector would otherwise have received.

Moreover, I am unwilling to dismiss as readily as the Court does the State’s concern that these unregulated high-stakes bingo games may attract organized criminal infiltration. Brief for Appellants 25-26, 29; Reply Brief for Appellants 12. Comprehensive regulation of the commercial gambling ventures that a State elects to license is obviously justified as a prophylactic measure even if there is presently no criminal activity associated with casino gambling in the State. Indeed, California regulates charitable bingo, horseracing, and its own lottery. The State of California requires that charitable bingo games may only be operated and staffed by members of designated charitable organizations, and that proceeds from the games may only be used for charitable purposes. Cal. Penal Code Ann. §326.5 (West Supp. 1987). These requirements for staffing and for dispersal of profits provide bulwarks against criminal activity; neither safeguard exists for bingo games on Indian reservations. In my judgment, unless Congress authorizes and regulates these commercial gambling ventures catering to non-Indians, the State has a legitimate law enforcement interest in proscribing them.

Appellants and the Secretary of the Interior may well be correct, in the abstract, that gambling facilities are a sensible way to generate revenues that are badly needed by reservation Indians. But the decision to adopt, to reject, or to define the precise contours of such a course of action, and thereby to set aside the substantial public policy concerns of a sovereign State, should be made by the Congress of the United States. It should not be made by this Court, by the temporary occupant of the Office of the Secretary of the Interior, or by non-Indian entrepreneurs who are experts in gambling management but not necessarily dedicated to serving the future well-being of Indian tribes.

I respectfully dissent.

       The Cabazon Reservation was originally set apart for the “permanent use and occupancy” of the Cabazon Indians by Executive Order of May 15, 1876. The Morongo Reservation also was first established by Executive Order. In 1891, in the Mission Indian Relief Act, 26 Stat. 712, Congress declared reservations “for the sole use and benefit” of the Cabazon and Morongo Bands. The United States holds the land in trust for the Tribes. The governing bodies of both Tribes have been recognized by the Secretary of the Interior. The Cabazon Band has 25 enrolled members and the Morongo Band has approximately 730 enrolled members.

       The Cabazon ordinance authorizes the Band to sponsor bingo games within the reservation “[i]n order to promote economic development of the Cabazon Indian Reservation and to generate tribal revenues” and provides that net revenues from the games shall be kept in a separate fund to be used “for the purpose of promoting the health, education, welfare and well being of the Cabazon Indian Reservation and for other tribal purposes.” App. to Brief for Appellees lb-3b. The ordinance further provides that no one other than the Band is authorized to sponsor a bingo game within the reservation, and that the games shall be open to the public, except that no one under 18 years old may play. The Morongo ordinance similarly authorizes the establishment of a tribal bingo enterprise and dedicates revenues to programs to promote the health, education, and general welfare of tribal members. Id., at la-6a. It additionally provides that the games may be conducted at any time but must be conducted at least three days per week, that there shall be no prize limit for any single game or session, that no person under 18 years old shall be allowed to play, and that all employees shall wear identification.

       The Tribes admit that their games violate the provision governing staffing and the provision setting a limit on jackpots. They dispute the State’s assertion that they do not maintain separate funds for the bingo operations. At oral argument, counsel for the State asserted, contrary to the position taken in the merits brief and contrary to the stipulated facts in this ease, App. 66, ¶ 24, 82-88, ¶ 16, that the Tribes are among the charitable organizations authorized to sponsor bingo games under the statute. It is therefore unclear whether the State intends to put the tribal bingo enterprises out of business or only to impose on them the staffing, jackpot limit, and separate fund requirements. The tribal bingo enterprises are apparently consistent with other provisions of the statute: minors are not allowed to participate, the games are conducted in buildings owned by the Tribes on tribal property, the games are open to the public, and persons must be physically present to participate.

       The Court of Appeals “afñrm[ed] the summary judgment and the permanent injunction restraining the County and the State from applying their gambling laws on the reservations.” 783 F. 2d, at 906. The judgment of the District Court declared that the state statute and county ordinance were of no force and effect within the two reservations, that the State and the county were without jurisdiction to enforce them, and that they were therefore enjoined from doing so. Since it is now sufficiently clear that the state and county laws at issue were held, as applied to the gambling activities on the two reservations, to be “invalid as repugnant to the Constitution, treaties or laws of the United States” within the meaning of 28 U. S. C. § 1254(2), the ease is within our appellate jurisdiction.

       “Indian country,” as defined at 18 U. S. C. §1151, includes “all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation.” This definition applies to questions of both criminal and civil jurisdiction. DeCoteau v. District County Court, 420 U. S. 425, 427, n. 2 (1975). The Cabazon and Morongo Reservations are thus Indian country.

       Section 2(a), codified at 18 U. S. C. § 1162(a), provides:
      “Each of the States . . . listed in the following table shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed ... to the same extent that such State . . . has jurisdiction over offenses committed elsewhere within the State . . . , and the criminal laws of such State . . . shall have the same force and effect within such Indian country as they have elsewhere within the State . . . :
      “California.All Indian country within the State.”

       Section 4(a), codified at 28 U. S. C. § 1360(a) (1982 ed. and Supp. Ill) provides:
      “Each of the States listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed ... to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State:
      “California.All Indian country within the State.”

       The Court of Appeals questioned whether we indicated disapproval of the prohibitory/regulatory distinction in Rice v. Rehner, 463 U. S. 713 (1983). We did not. We rejected in that case an asserted distinction between state “substantive” law and state “regulatory” law in the context of 18 U. S. C. § 1161, which provides that certain federal statutory provisions prohibiting the sale and possession of liquor within Indian country do not apply “provided such act or transaction is in conformity both with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country . . . .” We noted that nothing in the text or legislative history of § 1161 supported the asserted distinction, and then contrasted that statute with Pub. L. 280. “In the absence of a context that might possibly require it, we are reluctant to make such a distinction. Cf. Bryan v. Itasca County, 426 U. S. 373, 390 (1976) (grant of civil jurisdiction in 28 U. S. C. § 1360 does not include regulatory jurisdiction to tax in light of tradition of immunity from taxation).” 463 U. S., at 734, n. 18.

        Seminole Tribe v. Butterworth was an action by the Seminole Tribe for a declaratory judgment that the Florida bingo statute did not apply to its operation of a bingo hall on its reservation. See also Mashantucket Pequot Tribe v. McGuigan, 626 F. Supp. 245 (Conn. 1986); Oneida Tribe of Indians of Wisconsin v. Wisconsin, 518 F. Supp. 712 (WD Wis. 1981).

       Nothing in this opinion suggests that cockfighting, tattoo parlors, nude dancing, and prostitution are permissible on Indian reservations within California. See post, at 222. The applicable state laws governing an activity must be examined in detail before they can be characterized as regulatory or prohibitory. The lower courts have not demonstrated an inability to identify prohibitory laws. For example, in United States v. Marcyes, 557 F. 2d 1361, 1363-1366 (CA9 1977), the Court of Appeals adopted and applied the prohibitory/regulatory distinction in determining whether a state law governing the possession of fireworks was made applicable to Indian reservations by the Assimilative Crimes Statute, 62 Stat. 686, 18 U. S. C. § 13. The court concluded that, despite limited exceptions to the statute’s prohibition, the fireworks law was prohibitory in nature. See also United States v. Farris, 624 F. 2d 890 (CA9 1980), cert. denied, 449 U. S. 1111 (1981), discussed in n. 13, infra.

       Nor does Pub. L. 280 authorize the county to apply its gambling ordinances to the reservations. We note initially that it is doubtful that Pub. L. 280 authorizes the application of any local laws to Indian reservations. Section 2 of Pub. L. 280 provides that the criminal laws of the “State” shall have the same force and effect within Indian country as they have elsewhere. This language seems clearly to exclude local laws. We need not decide this issue, however, because even if Pub. L. 280 does make local criminal/prohibitory laws applicable on Indian reservations, the ordinances in question here do not apply. Consistent with our analysis of Cal. Penal Code Ann. §326.5 (West Supp. 1987) above, we conclude that Ordinance No. 558, the bingo ordinance, is regulatory in nature. Although Ordinance No. 331 prohibits gambling on all card games, including the games played in the Cabazon card club, the county does not prohibit municipalities within the county from enacting municipal ordinances permitting these card games, and two municipalities have in fact done so. It is clear, therefore, that Ordinance No. 331 does not prohibit these card games for purposes of Pub. L. 280.

       OCCA, 18 U. S. C. § 1955, provides in pertinent part:
      “(a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more that $20,000 or imprisoned not more than five years, or both.
      “(b) As used in this section—
      “(1) ‘illegal gambling business’ means a gambling business which —
      “(i) is a violation of the law of a State or political subdivision in which it is conducted;
      “(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and
      “(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.” (Emphasis added.)

       In Farris, in contrast, the court had concluded that a gambling business, featuring blackjack, poker, and dice, operated by tribal members on the Puyallup Reservation violated the public policy of Washington; the United States, therefore, could enforce OCCA against the Indians.

       In Dakota, the United States sought a declaratory judgment that a gambling business, also featuring the playing of blackjack, poker, and dice, operated by two members of the Keweenaw Bay Indian Community on land controlled by the community, and under a license issued by the community, violated OCCA. The Court of Appeals held that the gambling business violated Michigan law and OCCA.

      Title 18 U. S. C. §3231 provides: “The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.”

       See S. Rep. No. 99-493, p. 2 (1986). Federal law enforcement officers have the capability to respond to violations of OCCA on Indian reservations, as is apparent from Farris and Dakota. This is not a situation where the unavailability of a federal officer at a particular moment would likely result in nonenforcement. OCCA is directed at large-scale gambling enterprises. If state officers discover a gambling business unknown to federal authorities while performing their duties authorized by Pub. L. 280, there should be ample time for them to inform federal authorities, who would then determine whether investigation or other enforcement action was appropriate. A federal police officer is assigned by the Department of the Interior to patrol the Indian reservations in southern California. App. to Brief for Appellees D-l — D-7.

       In the special area of state taxation of Indian tribes and tribal members, we have adopted a per se rule. In Montana v. Blackfeet Tribe, 471 U. S. 759 (1985), we held that Montana could not tax the Tribe’s royalty interests in oil and gas leases issued to non-Indian lessees under the Indian Mineral Leasing Act of 1938. We stated: “In keeping with its plenary authority over Indian affairs, Congress can authorize the imposition of state taxes on Indian tribes and individual Indians. It has not done so often, and the Court consistently has held that it will find the Indians’ exemption from state taxes lifted only when Congress has made its intention to do so unmistakably clear.” Id., at 765. We have repeatedly addressed the issue of state taxation of tribes and tribal members and the state, federal, and tribal interests which it implicates. We have recognized that the federal tradition of Indian immunity from state taxation is very strong and that the state interest in taxation is correspondingly weak. Accordingly, it is unnecessary to rebalance these interests in every case. In Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148 (1973), we distinguished state taxation from other assertions of state jurisdiction. We acknowledged that we had made repeated statements “to the effect that, even on reservations, state laws may be applied unless such application would interfere with reservation self-government or would impair a right granted or reserved by federal law. . . . Even so, in 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, [411 U. S. 164 (1973)], lays to rest any doubt in this respect by holding that such taxation is not permissible absent congressional consent.” Ibid, (emphasis added).

       Justice Stevens appears to embrace the opposite presumption — that state laws apply on Indian reservations absent an express congressional statement to the contrary. But, as we stated in White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 151 (1980), in the context of an assertion of state authority over the activities of non-Indians within a reservation, “[t]hat is simply not the law.” It is even less correct when applied to the activities of tribes and tribal members within reservations.

       In New Mexico v. Mescalero Apache Tribe, 462 U. S., at 335, n. 17, we discussed a number of the statutes Congress enacted to promote tribal self-government. The congressional declarations of policy in the Indian Financing Act of 1974, as amended, 25 U. S. C. § 1451 et seq. (1982 ed. and Supp. Ill), and in the Indian Self-Determination and Education Assistance Act of 1975, as amended, 25 U. S. C. § 450 et seq. (1982 ed. and Supp. Ill), are particularly significant in this case: “It is hereby declared to be the policy of Congress ... to help develop and utilize Indian resources, both physical and human, to a point where the Indians will fully exercise responsibility for the utilization and management of their own resources and where they will enjoy a standard of living from their own productive efforts comparable to that enjoyed by non-Indians in neighboring communities.” 25 U. S. C. § 1451. Similarly, “[t]he Congress declares its commitment to the maintenance of the Federal Government’s unique and continuing relationship with and responsibility to the Indian people through the establishment of a meaningful Indian self-determination policy which will permit an orderly transition from Federal domination of programs for and services to Indians to effective and meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services.” 25 U. S. C. § 450a(b).

       “It is important to the concept of self-government that tribes reduce their dependence on Federal funds by providing a greater percentage of the cost of their self-government.” 19 Weekly Comp, of Pres. Doc. 99 (1983).

       The Court of Appeals relied on the following official declarations. 783 F. 2d, at 904-905. A policy directive issued by the Assistant Secretary of the Interior on March 2,1983, stated that the Department would “strongly oppose” any proposed legislation that would subject tribes or tribal members to state gambling regulation. “Such a proposal is inconsistent with the President’s Indian Policy Statement of January 24, 1983. ... A number of tribes have begun to engage in bingo and similar gambling operations on their reservations for the very purpose enunciated in the. President’s Message. Given the often limited resources which tribes have for revenue-producing activities, it is believed that this kind of revenue-producing possibility should be protected and enhanced.” The court also relied on an affidavit submitted by the Director of Indian Services, Bureau of Indian Affairs, on behalf of the Tribes’ position:
      “It is the department’s position that tribal bingo enterprises are an appropriate means by which tribes can further their economic self-sufficiency, the economic development of reservations and tribal self-determination. All of these are federal goals for the tribes. Furthermore, it is the Department’s position that the development of tribal bingo enterprises is consistent with and in furtherance of President Reagan’s Indian Policy Statement of January 24, 1983.”

       Among other things, the guidelines require that the contract state that no payments have been made or will be made to any elected member of the tribal government or relative of such member for the purpose of obtaining or maintaining the contract. The contractor is required to disclose information on all parties in interest to the contract and all employees who will have day-to-day management responsibility for the gambling operation, including names, home and business addresses, occupations, dates of birth, and Social Security numbers. The Federal Bureau of Investigation must conduct a name-and-record check on these persons before a contract may be approved. The guidelines also specify accounting procedures and cash management procedures which the contractor must follow.

       An agent of the California Bureau of Investigation visited the Cabazon bingo parlor as part of an investigation of tribal bingo enterprises. The agent described the clientele as follows:
      “In attendance for the Monday evening bingo session were about 300 players. ... On row 5, on the front left side were a middle-aged latín couple, who were later joined by two young latín males. These men had to have the game explained to them. The middle table was shared with a senior citizen couple. The aisle table had 2 elderly women, 1 in a wheelchair, and a middle-aged woman. ... A goodly portion of the crowd were retired age to senior citizens.” App. 176. We are unwilling to assume that these patrons would be indifferent to the services offered by the Tribes.

       Hearings on H. R. 4566 before the House Committee on Interior and Insular Affairs, 98th Cong., 2d Sess., 15-39, 66-75 (1984); App. 197-205.

       Justice Stevens’ assertion, post, at 226, that the State’s interest in restricting the proceeds of gambling to itself, and the charities it favors, justifies the prohibition or regulation of tribal bingo games is indeed strange. The State asserted no such discriminatory economic interest; and it is pure speculation that, in the absence of tribal bingo games, would-be patrons would purchase lottery tickets or would attend state-approved bingo games instead. In any event, certainly California has no legitimate interest in allowing potential lottery dollars to be diverted to non-Indian owners of card clubs and horse tracks while denying Indian tribes the opportunity to profit from gambling activities. Nor is California necessarily entitled to prefer the funding needs of state-approved charities over the funding needs of the Tribes, who dedicate bingo revenues to promoting the health, education, and general welfare of tribal members.

       The Court holds that Pub. L. 280 does not authorize California to enforce its prohibition against commercial gambling within the Cabazon and Morongo Reservations. Ante, at 212. The Court reaches this conclusion by determining that § 4(a) of Pub. L. 280, 28 U. S. C. § 1360(a), withholds from the States general civil regulatory authority over Indian tribes, and that the State’s rules concerning gambling are regulatory rather than prohibitory. In its opinion, the Court dismisses the State’s argument that high-stakes, unregulated bingo is prohibited with the contention that an otherwise regulatory law does not become a prohibition simply because it “is enforceable by criminal as well as civil means.” Ante, at 211. Aside from the questionable merit of this proposition, it does not even address the meaning of §2(a) of Pub. L. 280, 18 U. S. C. 1162(a) (1982 ed., Supp. Ill), a provision which is sufficient to control the disposition of this case. See supra, at 222.

       The Cabazon Band’s bingo room was operated under a management agreement with an outside firm until 1986; the Morongo Band operates its bingo room under a similar management agreement. App. to Brief for Appellees, C-l to C-3; Morongo Band of Mission Indians Tribal Bingo Enterprise Management Agreement, ¶ 4B, App. 97-98.


author: Justice White Justice Powell,

text:
    MARTIN v. OHIO
    No. 85-6461.
    Argued December 2, 1986
    Decided February 25, 1987

      White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, and Scalia, JJ., joined. Powell, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, and in Parts I and III of which Blackmun, J., joined, post, p. 236.

      James R. Willis argued the cause for petitioner. With him on the briefs was Margery B. Koosed.

      George J. Sadd argued the cause for respondent. With him on the brief was John T. Corrigan

        Randall M. Dana, Gregory L. Ayers, Richard L. Aynes, Margery B. Koosed, and J. Dean Carro filed a brief for the Ohio Public Defender Commission as amicus curiae urging reversal.

   Justice White

delivered the opinion of the Court.

The Ohio Code provides that “[e]very person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof by a preponderance of the evidence, for an affirmative defense, is upon the accused.” Ohio Rev. Code Ann. §2901.05(A)(1982). An affirmative defense is one involving “an excuse or justification peculiarly within the knowledge of the accused, on which he can fairly be required to adduce supporting evidence.” Ohio Rev. Code Ann. §2901.05(C)(2)(1982). The Ohio courts have “long determined that self-defense is an affirmative defense,” 21 Ohio St. 3d 91, 93, 488 N. E. 2d 166, 168 (1986), and that the defendant has the burden of proving it as required by § 2901.05(A).

As defined by the trial court in its instructions in this case, the elements of self-defense that the defendant must prove are that (1) the defendant was not at fault in creating the situation giving rise to the argument; (2) the defendant had an honest belief that she was in imminent danger of death or great bodily harm, and that her only means of escape from such danger was in the use of such force; and (3) the defendant did not violate any duty to retreat or avoid danger. App. 19. The question before us is whether the Due Process Clause of the Fourteenth Amendment forbids placing the burden of proving self-defense on the defendant when she is charged by the State of Ohio with committing the crime of aggravated murder, which, as relevant to this case, is defined by the Revised Code of Ohio as “purposely, and with prior calculation and design, causing] the death of another.” Ohio Rev. Code Ann. §2903.01 (1982).

The facts of the case, taken from the opinions of the courts below, may be succinctly stated. On July 21, 1983, petitioner Earline Martin and her husband, Walter Martin, argued over grocery money. Petitioner claimed that her husband struck her in the head during the argument. Petitioner’s version of what then transpired was that she went upstairs, put on a robe, and later came back down with her husband’s gun which she intended to dispose of. Her husband saw something in her hand and questioned her about it. He came at her, and she lost her head and fired the gun at him. Five or six shots were fired, three of them striking and killing Mr. Martin. She was charged with and tried for aggravated murder. She pleaded self-defense and testified in her own defense. The judge charged the jury with respect to the elements of the crime and of self-defense and rejected petitioner’s Due Process Clause challenge to the charge placing on her the burden of proving self-defense. The jury found her guilty.

Both the Ohio Court of Appeals and the Supreme Court of Ohio affirmed the conviction. Both rejected the constitutional challenge to the instruction requiring petitioner to prove self-defense. The latter court, relying upon our opinion in Patterson v. New York, 432 U. S. 197 (1977), concluded that the State was required to prove the three elements of aggravated murder but that Patterson did not require it to disprove self-defense, which is a separate issue that did not require Mrs. Martin to disprove any element of the offense with which she was charged. The court said, “the state proved beyond a reasonable doubt that appellant purposely, and with prior calculation and design, caused the death of her husband. Appellant did not dispute the existence of these elements, but rather sought to justify her actions on grounds she acted in self defense.” 21 Ohio St. 3d, at 94, 488 N. E. 2d, at 168. There was thus no infirmity in her conviction. We granted certiorari, 475 U. S. 1119 (1986), and affirm the decision of the Supreme Court of Ohio.

In re Winship, 397 U. S. 358, 364 (1970), declared that the Due Process Clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” A few years later, we held that Winship’s mandate was fully satisfied where the State of New York had proved beyond reasonable doubt each of the elements of murder, but placed on the defendant the burden of proving the affirmative defense of extreme emotional disturbance, which, if proved, would have reduced the crime from murder to manslaughter. Patterson v. New York, supra. We there emphasized the preeminent role of the States in preventing and dealing with crime and the reluctance of the Court to disturb a State’s decision with respect to the definition of criminal conduct and the procedures by which the criminal laws are to be enforced in the courts, including the burden of producing evidence and allocating the burden of persuasion. 432 U. S., at 201-202. New York had the authority to define murder as the intentional killing of another person. It had chosen, however, to reduce the crime to manslaughter if the defendant proved by a preponderance of the evidence that he had acted under the influence of extreme emotional distress. To convict of murder, the jury was required to find beyond a reasonable doubt, based on all the evidence, including that related to the defendant’s mental state at the time of the crime, each of the elements of murder and also to conclude that the defendant had not proved his affirmative defense. The jury convicted Patterson, and we held there was no violation of the Fourteenth Amendment as construed in Winship. Referring to Leland v. Oregon, 343 U. S. 790 (1952), and Rivera v. Delaware, 429 U. S. 877 (1976), we added that New York “did no more than Leland and Rivera permitted it to do without violating the Due Process Clause” and declined to reconsider those cases. 432 U. S., at 206, 207. It was also observed that “the fact that a majority of the States have now assumed the burden of disproving affirmative defenses — for whatever reasons — [does not] mean that those States that strike a different balance are in violation of the Constitution.” Id., at 211.

As in Patterson, the jury was here instructed that to convict it must find, in light of all the evidence, that each of the elements of the crime of aggravated murder has been proved by the State beyond reasonable doubt, and that the burden of proof with respect to these elements did not shift. To find guilt, the jury had to be convinced that none of the evidence, whether offered by the State or by Martin in connection with her plea of self-defense, raised a reasonable doubt that Martin had killed her husband, that she had the specific purpose and intent to cause his death, or that she had done so with prior calculation and design. It was also told, however, that it could acquit if it found by a preponderance of the evidence that Martin had not precipitated the confrontation, that she had an honest belief that she was in imminent danger of death or great bodily harm, and that she had satisfied any duty to retreat or avoid danger. The jury convicted Martin.

We agree with the State and its Supreme Court that this conviction did not violate the Due Process Clause. The State did not exceed its authority in defining the crime of murder as purposely causing the death of another with prior calculation or design. It did not seek to shift to Martin the burden of proving any of those elements, and the jury’s verdict reflects that none of her self-defense evidence raised a reasonable doubt about the State’s proof that she purposefully killed with prior calculation and design. She nevertheless had the opportunity under state law and the instructions given to justify the killing and show herself to be blameless by proving that she acted in self-defense. The jury thought she had failed to do so, and Ohio is as entitled to punish Martin as one guilty of murder as New York was to punish Patterson.

It would be quite different if the jury had been instructed that self-defense evidence could not be considered in determining whether there was a reasonable doubt about the State’s case, i. e., that self-defense evidence must be put aside for all purposes unless it satisfied the preponderance standard. Such an instruction would relieve the State of its burden and plainly run afoul of Winship’s mandate. 397 U. S., at 364. The instructions in this case could be clearer in this respect, but when read as a whole, we think they are adequate to convey to the jury that all of the evidence, including the evidence going to self-defense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the State’s proof of the elements of the crime.

We are thus not moved by assertions that the elements of aggravated murder and self-defense overlap in the sense that evidence to prove the latter will often tend to negate the former. It may be that most encounters in which self-defense is claimed arise suddenly and involve no prior plan or specific purpose to take life. In those cases, evidence offered to support the defense may negate a purposeful killing by prior calculation and design, but Ohio does not shift to the defendant the burden of disproving any element of the state’s case. When the prosecution has made out a prima facie case and survives a motion to acquit, the jury may nevertheless not convict if the evidence offered by the defendant raises any reasonable doubt about the existence of any fact necessary for the finding of guilt. Evidence creating a reasonable doubt could easily fall far short of proving self-defense by a preponderance of the evidence. Of course, if such doubt is not raised in the jury’s mind and each juror is convinced that the defendant purposely and with prior calculation and design took life, the killing will still be excused if the elements of the defense are satisfactorily established. We note here, but need not rely on, the observation of the Supreme Court of Ohio that “[ajppellant did not dispute the existence of [the elements of aggravated murder], but rather sought to justify her actions on grounds she acted in self-defense.” 21 Ohio St. 3d, at 94, 488 N. E. 2d, at 168.

Petitioner submits that there can be no conviction under Ohio law unless the defendant’s conduct is unlawful, and that because self-defense renders lawful what would otherwise be a crime, unlawfulness is an element of the offense that the state must prove by disproving self-defense. This argument founders on state law, for it has been rejected by the Ohio Supreme Court and by the Court of Appeals for the Sixth Circuit. White v. Arn, 788 F. 2d 338, 346-347 (1986); State v. Morris, 8 Ohio App. 3d 12, 18-19, 455 N. E. 2d 1352, 1359-1360 (1982). It is true that unlawfulness is essential for conviction, but the Ohio courts hold that the unlawfulness in cases like this is the conduct satisfying the elements of aggravated murder — an interpretation of state law that we are not in a position to dispute. The same is true of the claim that it is necessary to prove a “criminal” intent to convict for serious crimes, which cannot occur if self-defense is shown: the necessary mental state for aggravated murder under Ohio law is the specific purpose to take life pursuant to prior calculation and design. See White v. Arn, supra, at 346.

As we noted in Patterson, the common-law rule was that affirmative defenses, including self-defense, were matters for the defendant to prove. “This was the rule when the Fifth Amendment was adopted, and it was the American rule when the. Fourteenth Amendment was ratified.” 432 U. S., at 202. Indeed, well into this century, a number of States followed the common-law rule and required a defendant to shoulder the burden of proving that he acted in self-defense. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L. J. 880, 882, and n. 10 (1968). We are aware that all but two of the States, Ohio and South Carolina, have abandoned the common-law rule and require the prosecution to prove the absence of self-defense when it is properly raised by the defendant. But the question remains whether those States are in violation of the Constitution; and, as we observed in Patterson, that question is not answered by cataloging the practices of other States. We are no more convinced that the Ohio practice of requiring self-defense to be proved by the defendant is unconstitutional than we are that the Constitution requires the prosecution to prove the sanity of a defendant who pleads not guilty by reason of insanity. We have had the opportunity to depart from Leland v. Oregon, 343 U. S. 790 (1952), but have refused to do so. Rivera v. Delaware, 429 U. S. 877 (1976). These cases were important to the Patterson decision and they, along with Patterson, are authority for our decision today.

The judgment of the Ohio Supreme Court is accordingly

Affirmed.

Justice Powell,

with whom Justice Brennan and Justice Marshall join, and with whom Justice Blackmun joins with respect to Parts I and III, dissenting.

Today the Court holds that a defendant can be convicted of aggravated murder even though the jury may have a reasonable doubt whether the accused acted in self-defense, and thus whether he is guilty of a crime. Because I think this decision is inconsistent with both precedent and fundamental fairness, I dissent.

I

Petitioner Earline Martin was tried in state court for the aggravated murder of her husband. Under Ohio law, the elements of the crime are that the defendant has purposely killed another with “prior calculation and design.” Ohio Rev. Code Ann. §2903.01 (1982). Martin admitted that she shot her husband, but claimed that she acted in self-defense. Because self-defense is classified as an “affirmative” defense in Ohio, the jury was instructed that Martin had the burden of proving her claim by a preponderance of the evidence. Martin apparently failed to carry this burden, and the jury found her guilty.

The Ohio Supreme Court upheld the conviction, relying in part on this Court’s opinion in Patterson v. New York, 432 U. S. 197 (1977). The Court today also relies on the Patterson reasoning in affirming the Ohio decision. If one accepts Patterson as the proper method of analysis for this case, I believe that the Court’s opinion ignores its central meaning.

In Patterson, the Court upheld a state statute that shifted the burden of proof for an affirmative defense to the accused. New York law required the prosecutor to prove all of the statutorily defined elements of murder beyond a reasonable doubt, but permitted a defendant to reduce the charge to manslaughter by showing that he acted while suffering an “extreme emotional disturbance.” See N. Y. Penal Law §§125.25, 125.20 (McKinney 1975 and Supp. 1987). The Court found that this burden shifting did not violate due process, largely because the affirmative defense did “not serve to negative any facts of the crime which the State is to prove in order to convict of murder.” 432 U. S., at 207. The clear implication of this ruling is that when an affirmative defense does negate an element of the crime, the state may not shift the burden. See White v. Arn, 788 F. 2d 338, 344-345 (CA6 1986). In such a case, In re Winship, 397 U. S. 358 (1970), requires the state to prove the nonexistence of the defense beyond a reasonable doubt.

The reason for treating a defense that negates an element of the crime differently from other affirmative defenses is plain. If the jury is told that the prosecution has the burden of proving all the elements of a crime, but then also is instructed that the defendant has the burden of disproving one of those same elements, there is a danger that the jurors will resolve the inconsistency in a way that lessens the presumption of innocence. For example, the jury might reasonably believe that by raising the defense, the accused has assumed the ultimate burden of proving that particular element. Or, it might reconcile the instructions simply by balancing the evidence that supports the prosecutor’s case against the evidence supporting the affirmative defense, and conclude that the state has satisfied its burden if the prosecution’s version is more persuasive. In either case, the jury is given the unmistakable but erroneous impression that the defendant shares the risk of nonpersuasion as to a fact necessary for conviction.

Given these principles, the Court’s reliance on Patterson is puzzling. Under Ohio law, the element of “prior calculation and design” is satisfied only when the accused has engaged in a “definite process of reasoning in advance of the killing,” i. e., when he has given the plan at least some “studied consideration.” App. 14 (jury instructions) (emphasis added). In contrast, when a defendant such as Martin raises a claim of self-defense, the jury also is instructed that the accused must prove that she “had an honest belief that she was in imminent danger of death or great bodily harm.” Id., at 19 (emphasis added). In many cases, a defendant who finds himself in immediate danger and reacts with deadly force will not have formed a prior intent to kill. The Court recognizes this when it states:

“It may be that most encounters in which self-defense is claimed arise suddenly and involve no prior plan or specific purpose to take life. In those cases, evidence offered to support the defense may negate a purposeful killing by prior calculation and design . . . .” Ante, at 234.

Under Patterson, this conclusion should suggest that Ohio is precluded from shifting the burden as to self-defense. The Court nevertheless concludes that Martin was properly required to prove self-defense, simply because “Ohio does not shift to the defendant the burden of disproving any element of the state’s case.” Ibid.

The Court gives no explanation for this apparent rejection of Patterson. The only justification advanced for the Court’s decision is that the jury could have used the evidence of self-defense to find that the State failed to carry its burden of proof. Because the jurors were free to consider both Martin’s and the State’s evidence, the argument goes, the verdict of guilt necessarily means that they were convinced that the defendant acted with prior calculation and design, and were unpersuaded that she acted in self-defense. Ante, at 233. The Court thus seems to conclude that as long as the jury is told that the state has the burden of proving all elements of the crime, the overlap between the offense and defense is immaterial.

This reasoning is flawed in two respects. First, it simply ignores the problem that arises from inconsistent jury instructions in a criminal case. The Court’s holding implicitly assumes that the jury in fact understands that the ultimate burden remains with the prosecutor at all times, despite a conflicting instruction that places the burden on the accused to disprove the same element. But as pointed out above, the Patterson distinction between defenses that negate an element of the crime and those that do not is based on the legitimate concern that the jury will mistakenly lower the state’s burden. In short, the Court’s rationale fails to explain why the overlap in this case does not create the risk that Patterson suggested was unacceptable.

Second, the Court significantly, and without explanation, extends the deference granted to state legislatures in this area. Today’s decision could be read to say that virtually all state attempts to shift the burden of proof for affirmative defenses will be upheld, regardless of the relationship between the elements of the defense and the elements of the crime. As I understand it, Patterson allowed burden shifting because evidence of an extreme emotional disturbance did not negate the mens rea of the underlying offense. After today’s decision, however, even if proof of the defense does negate an element of the offense, burden shifting still may be permitted because the jury can consider the defendant’s evidence when reaching its verdict.

I agree, of course, that States must have substantial leeway in defining their criminal laws and administering their criminal justice systems. But none of our precedents suggests that courts must give complete deference to a State’s judgment about whether a shift in the burden of proof is consistent with the presumption of innocence. In the past we have emphasized that in some circumstances it may be necessary to look beyond the text of the State’s burden-shifting laws to satisfy ourselves that the requirements of WinsM/p have been satisfied. In Mullaney v. Wilbur, 421 U. S. 684, 698-699 (1975) we explicitly noted the danger of granting the State unchecked discretion to shift the burden as to any element of proof in a criminal case. The Court today fails to discuss or even cite Mullaney, despite our unanimous agreement in that case that this danger would justify judicial intervention in some cases. Even Patterson, from which I dissented, recognized that “there are obviously constitutional limits beyond which the States may not go [in labeling elements of a crime as an affirmative defense].” 432 U. S., at 210. Today, however, the Court simply asserts that Ohio law properly allocates the burdens, without giving any indication of where those limits lie.

Because our precedent establishes that the burden of proof may not be shifted when the elements of the defense and the elements of the offense conflict, and because it seems clear that they do so in this case, I would reverse the decision of the Ohio Supreme Court.

II

Although I believe that this case is wrongly decided even under the principles set forth in Patterson, my differences with the Court’s approach are more fundamental. I continue to believe that the better method for deciding when a State may shift the burden of proof is outlined in the Court’s opinion in Mullaney and in my dissenting opinion in Patterson. In Mullaney, we emphasized that the state’s obligation to prove certain facts beyond a reasonable doubt was not necessarily restricted to legislative distinctions between offenses and affirmative defenses. The boundaries of the state’s authority in this respect were elaborated in the Patterson dissent, where I proposed a two-part inquiry:

“The Due Process Clause requires that the prosecutor bear the burden of persuasion beyond a reasonable doubt only if the factor at issue makes a substantial difference in punishment and stigma. The requirement of course applies a fortiori if the factor makes the difference between guilt and innocence. ... It also must be shown that in the Anglo-American legal tradition the factor in question historically has held that level of importance. If either branch of the test is not met, then the legislature retains its traditional authority over matters of proof.” 432 U. S., at 226-227 (footnotes omitted).

Cf. McMillan v. Pennsylvania, 477 U. S. 79, 103 (1986) (Stevens, J., dissenting) (“[I]f a State provides that a specific component of a prohibited transaction shall give rise both to a special stigma and to a special punishment, that component must be treated as a ‘fact necessary to constitute the crime’ within the meaning of our holding in In re Winship”).

There are at least two benefits to this approach. First, it ensures that the critical facts necessary to sustain a conviction will be proved by the state. Because the Court would be willing to look beyond the text of a state statute, legislatures would have no incentive to redefine essential elements of an offense to make them part of an affirmative defense, thereby shifting the burden of proof in a manner inconsistent with Winship and Mullaney. Second, it would leave the States free in all other respects to recognize new factors that may mitigate the degree of criminality or punishment, without requiring that they also bear the burden of disproving these defenses. See Patterson v. New York, 432 U. S., at 229-230 (Powell, J., dissenting) (“New ameliorative affirmative defenses . . . generally remain undisturbed by the holdings in Winship and Mullaney” (footnote omitted)).

Under this analysis, it plainly is impermissible to require the accused to prove self-defense. If petitioner could have carried her burden, the result would have been decisively different as to both guilt and punishment. There also is no dispute that self-defense historically is one of the primary justifications for otherwise unlawful conduct. See, e. g., Beard v. United States, 158 U. S. 550, 562 (1895). Thus, while I acknowledge that the two-part test may be difficult to apply at times, it is hard to imagine a more clear-cut application than the one presented here.

hH I — I I — I

In its willingness to defer to the State’s legislative definitions of crimes and defenses, the Court apparently has failed to recognize the practical effect of its decision. Martin alleged that she was innocent because she acted in self-defense, a complete justification under Ohio law. See State v. Nolton, 19 Ohio St. 2d 133, 249 N. E. 2d 797 (1969). Because she had the burden of proof on this issue, the jury could have believed that it was just as likely as not that Martin’s conduct was justified, and yet still have voted to convict. In other words, even though the jury may have had a substantial doubt whether Martin committed a crime, she was found guilty under Ohio law. I do not agree that the Court’s authority to review state legislative choices is so limited that it justifies increasing the risk of convicting a person who may not be blameworthy. See Patterson v. New York, supra, at 201-202 (state definition of criminal law must yield when it “ ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental’ ” (quoting Speiser v. Randall, 357 U. S. 513, 523 (1958))). The complexity of the inquiry as to when a State may shift the burden of proof should not lead the Court to fashion simple rules of deference that could lead to such unjust results.

      The dissent believes that the self-defense instruction might have led the jury to believe that the defendant had the burden of proving the ab-senee of prior calculation and design. Indeed, its position is that no instruction could be clear enough not to mislead the jury. As is evident from the text, we disagree. We do not harbor the dissent’s mistrust of the jury; and the instructions were sufficiently clear to convey to the jury that the State’s burden of proving prior calculation did not shift and that self-defense evidence had to be considered in determining whether the State’s burden had been discharged. We do not depart from Patterson v. New York, 432 U. S. 197 (1977), in this respect, or in any other.

       Indeed, this type of instruction has an inherently illogical aspect. It makes no sense to say that the prosecution has the burden of proving an element beyond a reasonable doubt, and that the defense has the burden of proving the contrary by a preponderance of the evidence. If the jury finds that the prosecutor has not met his burden, it of course will have no occasion to consider the affirmative defense. And if the jury finds that each element of the crime has been proved beyond a reasonable doubt, it necessarily has decided that the defendant has not disproved an element of the crime. In either situation the instructions on the affirmative defense are surplusage. Because a reasonable jury will attempt to ascribe some significance to the court’s instructions, the likelihood that it will impermissi-bly shift the burden is increased.
      Of course, whether the jury will in fact improperly shift the burden away from the state is uncertain. But it is “settled law . . . that when there exists a reasonable possibility that the jury relied on an unconstitutional understanding of the law in reaching a guilty verdict, that verdict must be set aside.” Francis v. Franklin, 471 U. S. 307, 323, n. 8 (1985).

       The accused also must have avoided the danger if possible, and must not have been at fault in creating the threatening situation. See State v. Robbins, 58 Ohio St. 2d 74, 79-80, 388 N. E. 2d 755, 758 (1979).

       This risk could have been reduced — although in my view, not eliminated — if the instructions had made it clear that evidence of self-defense can create a reasonable doubt as to guilt, even if that same evidence did not rise to the level necessary to prove an affirmative defense. But the instructions gave little guidance in this respect. The trial court simply told the jury that the prosecution must prove the elements of the crime, and the defendant must prove the existence of the defense. The instructions gave no indication how the jury should evaluate evidence that affected an element of both the crime and the defense. Cf. Francis v. Franklin, supra, at 322 (“Nothing in these specific sentences or in the [jury] charge as a whole makes clear . . . that one of these contradictory instructions carries more weight than the other”).

       We noted, for example:
      “[I]f Winship were limited to those facts that constitute a crime as defined by state law, a State could undermine many of the interests that decision sought to protect without effecting any substantive change in its law. It would only be necessary to redefine the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment.” 421 U. S., at 698.

       See also McMillan v. Pennsylvania, 477 U. S. 79, 86 (1986) (“[I]n certain limited circumstances Winship’s reasonable-doubt requirement applies to facts not formally identified as elements of the offense charged”).