source: Caselaw Access Project

author: Justice Thomas Justice O’Connor,

license: Public Domain

text:
    NORTHEASTERN FLORIDA CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA v. CITY OF JACKSONVILLE, FLORIDA, et al.
    No. 91-1721.
    Argued February 22, 1993 —
    Decided June 14, 1993

      Deborah A Ausburn argued the cause for petitioner. With her on the briefs was G. Stephen Parker.

      Leonard S. Magid argued the cause for respondents. With him on the brief were Charles W. Arnold, Jr., and Steven E. Rohan

      Brie£s of amici curiae urging reversal were filed for the Associated General Contractors of America, Inc., by Walter H. Ryland and Michael E. Kennedy; for the Equal Rights Advocates et al. by Curtis E. A. Karnow, Judith Kurtz, Eva Jefferson Paterson, Antonia Hernandez, and William C. McNeill III; for the Pacific Legal Foundation et al. by John

        H. Findley, Ronald, A Zumbrun, and James W. Polk; and for Public Citizen et al. by Paul R. Q. Wolfson, Alan B. Morrison, John A Powell, and Steven R. Shapiro.

        Richard Ruda filed a brief for the National League of Cities et al. as amici curiae urging affirmance.

        Lee Fisher, Attorney General of Ohio, Andrew I. Sutter, Assistant Attorney General, and Frank J. Kelley, Attorney General of Michigan, filed a brief for the State of Ohio et al. as amici curiae.

   Justice Thomas

delivered the opinion of the Court.

A Jacksonville, Florida, ordinance accords preferential treatment to certain minority-owned businesses in the award of city contracts. In this case we decide whether, in order to have standing to challenge the ordinance, an association of contractors is required to show that one of its members would have received a contract absent the ordinance. We hold that it is not.

I

A

In 1984, respondent Jacksonville enacted an ordinance entitled “Minority Business Enterprise Participation,” which required that 10% of the amount spent on city contracts be set aside each fiscal year for so-called “Minority Business Enterprises” (MBE’s). City of Jacksonville Purchasing Code §§ 126.604(a), 126.605(a) (1988). An MBE was defined as a business whose ownership was at least 51% “minority” or female, § 126.603(a), and a “minority” was in turn defined as a person who is or considers himself to be black, Spanish-speaking, Oriental, Indian, Eskimo, Aleut, or handicapped, § 126.603(b). Once projects were earmarked for MBE bidding by the city’s chief purchasing officer, they were “deemed reserved for minority business enterprises only.” §§ 126.604(c), 126.605(c). Under the ordinance, “[mjathematical certainty [was] not required in determining the amount of the set aside,” but the chief purchasing officer was required to “make every attempt to come as close as possible to the ten percent figure.” §§ 126.604(a)(4), 126.605(a)(4). Hie ordinance also provided for waiver or reduction of the 10% set-aside under certain circumstances. § 126.608.

Petitioner, the Northeastern Florida Chapter of the Associated General Contractors of America (AGC), is an association of individuals and firms in the construction industry. Petitioner’s members do business in Jacksonville, and most of them do not qualify as MBE’s under the city’s ordinance. On April 4, 1989, petitioner filed an action, pursuant to 42 U. S. C. §1983, against the city and its mayor (also a respondent here) in the United States District Court for the Middle District of Florida. Claiming that Jacksonville’s ordinance violated the Equal Protection Clause of the Fourteenth Amendment (both on its face and as applied), petitioner sought declaratory and injunctive relief. In its complaint, petitioner alleged that many of its members “regularly bid on and perform construction work for the City of Jacksonville,” Complaint ¶ 9, and that they “would have . . . bid on . . . designated set aside contracts but for the restrictions imposed” by the ordinance, id., ¶ 46.

On April 6, 1989, the District Court entered a temporary restraining order prohibiting the city from implementing the MBE ordinance, and, on April 20, it issued a preliminary injunction. Respondents appealed. Concluding that petitioner had not demonstrated irreparable injury, the Court of Appeals reversed the issuance of the preliminary injunction, and remanded the case for an expedited disposition on the merits. 896 F. 2d 1283 (CA11 1990). Chief Judge Tjoflat concurred in the judgment. In his view the suit should have been dismissed for lack of standing, because petitioner’s complaint did not “refer to any specific contract or subcontract that would have been awarded to a non-minority bidder but for the set-aside ordinance.” Id., at 1287.

In the meantime, both petitioner and respondents had moved for summary judgment. On May 31, 1990, the District Court entered summary judgment for petitioner, concluding that the MBE ordinance was inconsistent with the equal protection criteria established by this Court in Richmond v. J. A. Croson Co., 488 U. S. 469 (1989). Once again respondents appealed, and once again they obtained a favorable ruling. 951 F. 2d 1217 (1992). Rather than addressing the merits of petitioner’s equal protection claim, the Court of Appeals held that petitioner “lacks standing to challenge the ordinance establishing the set-aside program,” id., at 1218, because it “has not demonstrated that, but for the program, any AGC member would have bid successfully for any of these contracts,” id., at 1219. The Court of Appeals accordingly vacated the District Court’s judgment, and remanded the ease with instructions to dismiss petitioner’s complaint without prejudice.

Because the Eleventh Circuit’s decision conflicts with decisions of the District of Columbia Circuit and the Ninth Circuit, see O’Donnell Constr. Co. v. District of Columbia, 295 U. S. App. D. C. 317, 320, 963 F. 2d 420, 423 (1992); Coral Constr. Co. v. King County, 941 F. 2d 910, 930 (CA9 1991), cert. denied, 502 U. S. 1033 (1992), we granted certiorari. 506 U. S. 813 (1992).

B

On October 27, 1992, 22 days after our grant of certiorari, the city repealed its MBE ordinance and replaced it with an ordinance entitled “African-American and Women’s Business Enterprise Participation,” which became effective the next day. This ordinance differs from the repealed ordinance in three principal respects. First, unlike the prior ordinance, which applied to women and members of seven different minority groups, the new ordinance applies only to women and blacks. Jacksonville Purchasing Code § 126.601(b) (1992). Second, rather than a 10% “set aside,” the new ordinance has established "participation goals” ranging from 5 to 16%, depending upon the type of contract, the ownership of the contractor, and the fiscal year in which the contract is awarded. § 126.604. Third, the new ordinance provides not one but five alternative methods for achieving the “participation goals.” • §§ 126.605, 126.618. Which of these methods the city will use is decided on a “project by project basis,” § 126.605, but one of them, the “Sheltered Market Plan,” is (apart from the percentages) virtually identical to the prior ordinance’s “set aside.” Under this plan, certain contracts are reserved “for the exclusive competition” of certified black- and female-owned businesses. § 126.605(b).

Claiming that there was no longer a live controversy with respect to the constitutionality of the repealed ordinance, respondents filed a motion to dismiss the case as moot on November 18, 1992. We denied that motion on December 14. 506 U. S. 1031 (1992).

II

In their brief on the merits, respondents reassert their claim that the repeal of the challenged ordinance renders the case moot. We decline to disturb our earlier ruling, however; now, as then, the mootness question is controlled by City of Mesquite v. Aladdin’s Castle, Inc., 455 U. S. 283 (1982), where we applied the “well settled” rule that “a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” Id., at 289. Although the challenged statutory language at issue in City of Mesquite had been eliminated while the case was pending in the Court of Appeals, we held that the case was not moot, because the defendant’s “repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court’s judgment were vacated.” Ibid.

This is an a fortiori case. There is no mere risk that Jacksonville will repeat its allegedly wrongful conduct; it has already done so. Nor does it matter that the new ordinance differs in certain respects from the old one. City of Mesquite does not stand for the proposition that it is only the possibility that the selfsame statute will be enacted that prevents a case from being moot; if that were the rule, a defendant could moot a case by repealing the challenged statute and replacing it with one that differs only in some insignificant respect. The gravamen of petitioner’s complaint is that its members are disadvantaged in their efforts to obtain city contracts. The new ordinance may disadvantage them to a lesser degree than the old one, but insofar as it accords preferential treatment to black- and female-owned contractors— and, in particular, insofar as its “Sheltered Market Plan” is a “set aside” by another name — it disadvantages them in the same fundamental way.

We hold that the case is not moot, and we now turn to the question on which we granted certiorari: whether petitioner has standing to challenge Jacksonville’s ordinance.

Ill

The doctrine of standing is “an essential and unchanging part of the case-or-controversy requirement of Article III,” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992), which itself “defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded,” Allen v. Wright, 468 U. S. 737, 750 (1984). It has been established by a long line of cases that a party seeking to invoke a federal court’s jurisdiction must demonstrate three things: (1) “injury in fact,” by which we mean an invasion of a legally protected interest that is “(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical, Lujan, supra, at 560 (citations, footnote, and internal quotation marks omitted); (2) a causal relationship between the injury and the challenged conduct, by which we mean that the injury “fairly can be traced to the challenged action of the defendant,” and has not resulted “from the independent action of some third party not before the court,” Simon v. Eastern Kentucky Welfare Rights Organization, 426 U. S. 26, 41-42 (1976); and (3) a likelihood that the injury will be redressed by a favorable decision, by which we mean that the “prospect of obtaining relief from the injury as a result of a favorable ruling” is not “too speculative,” Allen v. Wright, supra, at 752. These elements are the “irreducible minimum,” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 472 (1982), required by the Constitution.

The Court of Appeals held that petitioner could not establish standing because it failed to allege that one or more of its members would have been awarded a contract but for the challenged ordinance. Under these circumstances, the Court of Appeals concluded, there is no “injury.” 951 F. 2d, at 1219-1220. This holding cannot be reconciled with our precedents.

A

In Turner v. Fouche, 396 U. S. 346 (1970), a Georgia law limiting school board membership to property owners was challenged on equal protection grounds. We held that a plaintiff who did not own property had standing to challenge the law, id., at 361, n. 23, and although we did not say so explicitly, our holding did not depend upon an allegation that he would have been appointed to the board but for the property requirement. All that was necessary was that the plaintiff wished to be considered for the position. Accord, Quinn v. Millsap, 491 U. S. 95, 103 (1989) (plaintiffs who do not own real property have standing to challenge property requirement for membership on “board of freeholders”).

We confronted a similar issue in Clements v. Fashing, 457 U. S. 957 (1982). There, a number of officeholders claimed that their equal protection rights were violated by the “automatic resignation” provision of the Texas Constitution, which requires the immediate resignation of some (but not all) state officeholders upon their announcement of a candidacy for another office. Noting that the plaintiffs had alleged that they would have announced their candidacy were it not for the consequences of doing so, we rejected the claim that the dispute was “merely hypothetical,” and that the allegations were insufficient to create an “actual case or controversy.” Id., at 962. Citing Turner v. Fouche, we emphasized that the plaintiffs’ injury was the “obstacle to [their] candidacy,” 457 U. S., at 962 (emphasis added); we did not require any allegation that the plaintiffs would actually have been elected but for the prohibition.

The decision that is most closely analogous to this case, however, is Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978), where a twice-rejected white male applicant claimed that a medical school’s admissions program, which reserved 16 of the 100 places in the entering class for minority applicants, was inconsistent with the Equal Protection Clause. Addressing the argument that the applicant lacked standing to challenge the program, Justice Powell concluded that the “constitutional requirements of Art. Ill” had been satisfied, because the requisite “injury” was the medical school’s “decision not to permit Bakke to compete for all 100 places in the class, simply because of his race.” Id., at 281, n. 14 (emphasis added) (principal opinion). Thus, “even if Bakke had been unable to prove that he would have been admitted in the absence of the special program, it would not follow that he lacked standing.” Id., at 280-281, n. 14 (emphasis added). This portion of Justice Powell’s opinion was joined by four other Justices. See id., at 272.

Singly and collectively, these cases stand for the following proposition: When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The “injury in fact” in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. See, e. g., Turner v. Fouche, supra, at 362 (‘We may assume that the [plaintiffs] have no right to be appointed to the ... board of education. But [they] do have a federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications”) (footnote omitted) (emphasis added). And in the context of a challenge to a set-aside program, the “injury in fact” is the inability to compete on an equal footing in the bidding process, not the loss of a contract. See Croson, 488 U. S., at 493 (principal opinion of O’Connor, J.) (“The [set-aside program] denies certain citizens the opportunity to compete for a fixed percentage of public contracts based solely upon their race”) (emphasis added). To establish standing, therefore, a party challenging a set-aside program like Jacksonville’s need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis.

B

In urging affirmance, respondents rely primarily upon Warth v. Seldin, 422 U. S. 490 (1975). There the plaintiffs claimed that a town’s zoning ordinance, both by its terms and as enforced, violated the Fourteenth Amendment insofar as it had the effect of preventing people of low and moderate income from living in the town. Seeking to intervene in the suit, an association of construction firms alleged that the zoning restrictions had deprived some of its members of business opportunities and profits. We held that the association lacked standing, and we provided the following explanation for our holding:

“The complaint refers to no specific project of any of [the association’s] members that is currently precluded either by the ordinance or by respondents’ action in enforcing it. There is no averment that any member has applied to respondents for a building permit or a variance with respect to any current project. Indeed, there is no indication that respondents have delayed or thwarted any project currently proposed by [the association’s] members, or that any of its members has taken advantage of the remedial processes available under the ordinance. In short, insofar as the complaint seeks prospective relief, [the association] has failed to show the existence of any injury to its members of sufficient immediacy and ripeness to warrant judicial intervention.” Id., at 516.

We think Warth is distinguishable. Unlike the other cases that we have discussed, Warth did not involve an allegation that some discriminatory classification prevented the plaintiff from competing on an equal footing in its quest for a benefit. In Turner v. Fouche, Quinn v. Millsap, and Clements v. Fashing, the plaintiffs complained that they could not be considered for public office. And in both Bakke and this case, the allegation was that the plaintiff (or the plaintiff’s membership) was excluded from consideration for a certain portion of benefits — in Bakke, places in a medical school class; here, municipal contracts. In Warth, by contrast, there was no claim that the construction association’s members could not apply for variances and building permits on the same basis as other firms; what the association objected to were the “refusals by the town officials to grant variances and permits.” 422 U. S., at 515 (emphasis added). See also id., at 530 (Brennan, J., dissenting) (“[T]he claim is that respondents will not approve any project”) (emphasis deleted). The firms’ complaint, in other words, was not that they could not compete equally; it was that they did not win. Thus, while there is undoubtedly some tension between Warth and the aforementioned line of cases, this case is governed by the latter.

In any event, the tension is minimal. Even assuming that the alleged injury in Warth was an inability to compete for variances and permits on an equal basis, and that Warth, too, is analogous to this case, it is distinguishable nonetheless. Unlike petitioner, which alleged that its members regularly bid on contracts in Jacksonville and would bid on those that the city’s ordinance makes unavailable to them, the construction association in Warth did not allege that “any member ha[d] applied ... for a building permit or a variance with respect to any current project.” Id., at 516. Thus, unlike the association in Warth, petitioner has alleged an “injury... of sufficient immediacy... to warrant judicial intervention.” Ibid. Furthermore, we did not hold in Warth, as the Court of Appeals — mutatis mutandis — did here, that the association was required to allege that but for a discriminatory policy, variances or permits would have been awarded to its members. An allegation that a “specific project” was “precluded” by the existence or administration of the zoning ordinance, ibid., would certainly have been sufficient to establish standing, but there is no suggestion in Warth that it was necessary.

IV

In its complaint, petitioner alleged that its members regularly bid on construction contracts in Jacksonville, and that they would have bid on contracts set aside pursuant to the city’s ordinance were they so able. Complaint ¶¶ 9, 46. Because those allegations have not been challenged (by way of a motion for summary judgment, for example), we must assume that they are true. See Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1012-1013, n. 3 (1992); Pennell v. San Jose, 485 U. S. 1, 7 (1988). Given that assumption, and given the legal standard we have reaffirmed today, it was inappropriate for the Court of Appeals to order that petitioner’s complaint be dismissed for lack of standing. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

Justice O’Connor,

with whom

Justice Blackmun joins, dissenting.

When a challenged statute expires or is repealed or significantly amended pending review, and the only relief sought is prospective, the Court’s practice has been to dismiss the ease as moot. Today the Court abandons that practice, relying solely on our decision in City of Mesquite v. Aladdin’s Castle, Inc., 455 U. S. 283 (1982). See ante, at 661-663. I believe this case more closely resembles those cases in which we have found mootness than it does City of Mesquite. Accordingly, I would not reach the standing question decided by the majority.

I

A

Earlier this Term, the Court reaffirmed the longstanding rule that a ease must be dismissed as moot “if an event occurs [pending review] that makes it impossible for the court to grant ‘any effectual relief whatever’ to a prevailing party.” Church of Scientology of Cal. v. United States, 506 U. S. 9, 12 (1992) (quoting Mills v. Green, 159 U. S. 651, 653 (1895)). That principle applies to challenges to legislation that has expired or has been repealed, where the plaintiff has sought only prospective relief. If the challenged statute no longer exists, there ordinarily can be no real controversy as to its continuing validity, and an order enjoining its enforcement would be meaningless. In such circumstances, it is well settled that the case should be dismissed as moot. See, e. g., New Orleans Flour Inspectors v. Glover, 160 U. S. 170 (1895) (repeal). Accord, Burke v. Barnes, 479 U. S. 361, 363-365 (1987) (expiration); cf. Richmond v. J. A. Croson Co., 488 U. S. 469, 478, n. 1 (1989) (expiration of set-aside law did not moot case where parties had continuing controversy over question whether prior application of ordinance entitled plaintiff to damages).

The analysis varies when the challenged statute is amended or is repealed but replaced with new legislation. I agree with -the Court that a defendant cannot moot a case simply by altering the law “in some insignificant respect.” Ante, at 662. We have recognized, however, that material changes may render a case moot. See, e. g., Princeton Univ. v. Schmid, 455 U. S. 100, 103 (1982) (per curiam) (“substantial] amend[ment]” of challenged regulation mooted controversy over its validity). It seems clear, for example, that when the challenged law is revised so as plainly to eure the alleged defect, or in such a way that the law no longer applies to the plaintiff, there is no live controversy for the Court to decide. Such cases functionally are indistinguishable from those involving outright repeal: Neither a declaration of the challenged statute’s invalidity nor an injunction against its future enforcement would benefit the plaintiff, because the statute no longer can be said to affect the plaintiff. See, e. g., Department of Treasury v. Galioto, 477 U. S. 556, 559-560 (1986) (equal protection challenge to federal firearms statute treating certain felons more favorably than former mental patients moot after Congress amended statute to eliminate discrimination); Kremens v. Bartley, 431 U. S. 119, 128-130 (1977) (challenge to law permitting parents to commit juveniles under 18 to mental hospital mooted, with respect to those over 13, by new legislation permitting such commitment only of juveniles 13 and under); Board of Pub. Util. Comm’rs v. Compañía General De Tabacos De Filipinas, 249 U. S. 425, 426 (1919) (challenge to statute alleged to constitute unlawful delegation of legislative power to regulatory board dismissed after statutory amendment detailed board’s responsibilities); Berry v. Davis, 242 U. S. 468, 470 (1917) (suit to enjoin mandatory vasectomy on plaintiff dismissed after statute requiring operation was replaced by law inapplicable to plaintiff).

A more difficult question is presented when, after we have granted review of a case, the challenged statute is replaced with new legislation that, while not obviously or completely remedying the alleged infirmity in the original act, is more narrowly drawn. The new law ultimately may suffer from the same legal defect as the old. But the statute may be sufficiently altered so as to present a substantially different controversy from the one the district court originally decided. In such cases, this Court typically has exercised caution and treated the ease as moot.

In Diffenderfer v. Central Baptist Church of Miami, Inc., 404 U. S. 412 (1972) (per curiam), for example, plaintiffs challenged a Florida statute that exempted from taxation certain church property used in part as a commercial parking lot as violative of the Religion Clauses of the First Amendment. After this Court noted probable jurisdiction, the Florida Legislature repealed the statute and replaced it with new legislation exempting from taxation only church property used predominantly for religious purposes. Observing that the church property in question might not be entitled to an exemption under the new law, we concluded that the controversy before us was moot. We reasoned:

“The only relief sought in the complaint was a declaratory judgment that the now repealed [statute] is unconstitutional as applied to a church parking lot used for commercial purposes and an injunction against its application to said lot. This relief is, of course, inappropriate now that the statute has been repealed.” Id., at 414-415.

Recognizing that the plaintiffs might wish to challenge the newly enacted legislation, we declined simply to order dismissal, as is our practice when a controversy becomes moot pending a decision by this Court. See United States v. Munsingwear, Inc., 340 U. S. 36, 39, and n. 2 (1950). Instead, we vacated the lower court’s judgment and remanded with leave to the plaintiffs to amend their pleadings. 404 U. S., at 415.

The Court took a similar approach in Fusari v. Steinberg, 419 U. S. 379 (1975), in which plaintiffs challenged Connecticut’s procedures for determining continuing eligibility for unemployment compensation. A three-judge District Court held that the scheme violated due process because it failed to provide an adequate hearing and because administrative review of the hearing examiner’s decision took an unreasonably long time. After this Court noted probable jurisdiction, the state legislature amended the relevant statutes, establishing additional procedural protections at the hearing stage and altering the structure of administrative review to make it quicker and fairer. Because these changes “[might] alter significantly the character of the system considered by the District Court,” id., at 386-387, and because it was unclear how the new procedures would operate, id., at 388-389, we vacated the lower court’s judgment and remanded for reconsideration in light of the intervening changes in state law. See id., at 390; see also Allee v. Medrano, 416 U. S. 802, 818-820 (1974) (where criminal statutes declared unconstitutional were replaced by “more narrowly drawn” versions, case was moot absent pending prosecutions).

These precedents establish that, where a challenged statute is replaced with more narrowly drawn legislation pending our review, and the plaintiff seeks only prospective relief, we generally should decline to decide the case. The controversy with respect to the old statute is moot, because a declaration of its invalidity or an injunction against the law’s future enforcement would not benefit the plaintiff Where we cannot be sure how the statutory changes will affect the plaintiff’s claims, dismissal avoids the possibility that our decision will prove advisory.

B

Like Diffenderfer, this case concerns a law that was repealed and replaced after this Court granted review. Petitioner’s complaint requests only declaratory and injunctive relief from a set-aside ordinance that no longer exists. The Court acknowledges that Jacksonville’s new ordinance is more narrowly drawn than the last. See ante, at 662 (“The new ordinance may disadvantage [petitioner’s members] to a lesser degree than the old one”). But the majority believes that Diffenderfer and similar cases are inapposite because, in the majority’s view, Jacksonville’s new ordinance does not differ substantially from the one challenged in petitioner’s complaint. See ante, at 662-668, n. 3. I cannot agree.

“The gravamen of petitioner’s complaint,” ante, at 662, as I read it, was that the original set-aside law violated the Equal Protection Clause for two reasons: The law “[lacked] an adequate factual basis,” in that the city had not undertaken studies to determine whether past discrimination or its continuing effects made a preference program necessary, App. 15-17; and the ordinance “[was] not narrowly tailored to remedy any prior racial discrimination,” because the program was not limited in time, the 10% set-aside figure was not rationally related to any relevant statistic, and preferences were awarded to groups against whom no discrimination ever had occurred in the city, id., at 17-18. The District Court invalidated the ordinance on the authority of Rich-

mond v. J. A. Croson Co., 488 U. S. 469 (1989), in which we held that a set-aside program deficient in similar respects violated the Equal Protection Clause. App. to Pet. for Cert. 10-13. The District Court concluded that Jacksonville had not made sufficient findings of past discrimination; it therefore did not reach the “narro[w] tailoring]” question. Id., at 12.

The new ordinance clearly was written to remedy the constitutional defects that petitioner alleged and the District Court found in the original program. The new law was passed after completion of an independent study, which the city commissioned, and after a select committee of the Jacksonville City Council conducted numerous public hearings. The new ordinance expressly adopts the select committee’s findings concerning “the present effects of past discrimination” in city contracting. Jacksonville Purchasing Code §126.601 (1992).

The city’s effort to make the law more narrowly tailored also is evident. By its terms, the new program will expire in 10 years. § 126.604(a). In addition, as the Court explains, all but two of eight previously favored groups have been eliminated from the list of qualified participants; the participation goals vary according to the type of contract and the ownership of the contractor; and there are now five alternative methods for achieving the participation goals. See ante, at 660-661. Only one of the five methods for complying with the participation goals, the “Sheltered Market Plan,” resembles the earlier set-aside law. Ante, at 661. It is unclear how the city will decide when, if ever, to use the Sheltered Market Plan, rather than an alternative method, for a particular project. As in Fusari, “we can only speculate how the new system might operate.” 419 U. S., at 388-389.

Whether or not the new ordinance survives scrutiny under the Fourteenth Amendment — a question on which I express no view — I cannot say that these changes are “insignificant,” ante, at 662, to petitioner’s equal protection claim. The majority avoids this difficulty by characterizing petitioner’s complaint in the most general terms possible: “The gravamen of petitioner’s complaint is that its members are disadvantaged in their efforts to obtain city contracts.” Ibid. We did not undertake such a generalized approach in Diffenderfer or our other cases involving more narrowly drawn statutory changes. There, as here, any challenge to the new law “presents a different case,” Allee, 416 U. S., at 818, and the proper course therefore is to decline to render a decision.

That the only issue before us — and the only question decided by the Court of Appeals — concerns petitioner’s standing does not compel a different result. Cf. Burke v. Barnes, 479 U. S., at 363 (declining to reach standing question where expiration of law mooted controversy). A determination that petitioner has standing to challenge the repealed law avails it nothing, since that law no longer exists. Petitioner can benefit only from a determination that it has standing to challenge the new ordinance. But even assuming that the standing questions are identical under the old and new ordinances, the Court’s decision in this case, in my view, remains inappropriate. Petitioner has not yet attempted to amend its pleadings or to file another complaint to challenge the new ordinance. See Tr. of Oral Arg. 5. Thus, today’s ruling on the standing question could prove advisory. For that reason, I believe the wiser course, and the one most consistent with our precedents, would be to follow Diffenderfer. On the authority of that case, I would vacate the Court of Appeals’ judgment and remand to that court with instructions to remand the case to the District Court to permit the petitioner to challenge the new ordinance.

II

I also cannot agree with the majority’s assertion that City of Mesquite “controls]” this case. Ante, at 661. I understand City of Mesquite to have created a narrow exception to the general principles I have described — an exception that clearly is inapplicable here.

The plaintiff in City of Mesquite challenged a licensing ordinance governing coin-operated amusement establishments. One of the factors considered in determining whether to grant a license under the ordinance was whether the applicant has “connections with criminal elements.” 455 U. S., at 287 (internal quotation marks omitted). The District Court held that this phrase was unconstitutionally vague, and the Court of Appeals affirmed. While the case was pending before the Court of Appeals, however, the contested language was eliminated from the ordinance.

When the case came before us, we concluded that it need not be dismissed as moot. We relied on the voluntary-cessation doctrine, which provides that “a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” Id., at 289. If it did, defendants forever could avoid judicial review simply by ceasing the challenged practice, only to resume it after the case was dismissed. In such cases, we have said that the defendant, to establish mootness, bears a heavy burden of “demonstrat[ing] that there is no reasonable expectation that the wrong will be repeated.” United States v. W. T. Grant Co., 345 U. S. 629, 633 (1953) (internal quotation marks omitted).

In City of Mesquite, we decided to reach the merits of the plaintiff’s claim because “the city’s repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court’s judgment were vacated.” 455 U. S., at 289. We expressly noted that the city in fact had announced an intention to do exactly that, just as it already had eliminated and then reinstated another aspect of the same ordinance in the course of the same litigation, obviously in response to prior judicial action. Id., at 289, and n. 11. These circumstances made it virtually impossible to say that there was “no reasonable expectation” that the city would reenact the challenged language.

City of Mesquite did not purport to overrule the long line of eases in which we have found repeal of a challenged statute to moot the case. Significantly, we have not referred to the voluntary-cessation doctrine in any other case involving a statute repealed or materially altered pending review. The reason seems to me obvious. Unlike in City of Mesquite, in the ordinary ease it is not at all reasonable to suppose that the legislature has repealed or amended a challenged law simply to avoid litigation and that it will reinstate the original legislation if given the opportunity. This is especially true where, as here, the law has been replaced— no doubt at considerable effort and expense — with a more narrowly drawn version designed to cure alleged legal infirmities. We ordinarily do not presume that legislative bodies act in bad faith. That is why, other than in City of Mesquite, we have not required the government to establish that it cannot be expected to reenact repealed legislation before we will dismiss the case as moot.

At most, I believe City of Mesquite stands for the proposition that the Court has discretion to decide a case in which the statute under review has been repealed or amended. The Court appropriately may render judgment where circumstances demonstrate that the legislature likely will reinstate the old law — which would make a declaratory judgment or an order enjoining the law’s enforcement worthwhile. But such circumstances undoubtedly are rare. And the majority points to nothing in the record of this ease to suggest that we are dealing with the same sort of legislative improprieties that concerned us in City of Mesquite.

The majority is therefore quite unconvincing in its assertion that the mootness question in this case “is controlled by” City of Mesquite. Ante, at 661. By treating that exceptional case as announcing a general rule favoring the exereise of jurisdiction, moreover, today’s decision easts doubt on our other statutory-change cases and injects new uncertainty into our mootness jurisprudence. In my view, the principles developed in the other decisions I have described should continue to apply in the ordinary case. Where, as here, a challenged statute is replaced with a more narrowly drawn version pending review, and there is no indication that the legislature intends to reenact the prior version, I would follow Diffenderfer, vacate the lower court judgment, and direct that the plaintiff be permitted to challenge the new legislation. Accordingly, I respectfully dissent.

       In their motion for summary judgment, respondents claimed only that they were entitled to judgment as a matter of law on the merits; they did not challenge petitioner’s standing. See 2 Record, Exh. 33.

       The four other methods are (1) a “Participation Percentage Plan,” under which contractors are required to subcontract with black- or female-owned businesses, §§ 126.605(a), 126.612; (2) a “Direct Negotiation Plan,” pursuant to which the city engages in “direct negotiations” with black- or female-owned businesses, § 126.605(c); (3) a “Bid Preference Plan,” which provides for the award of a contract to the black- or female-owned business whose bid is within a certain percentage or dollar amount of the lowest bid, § 126.605(d); and (4) an “Impact Plan,” under which “point values” are awarded to black- and female-owned businesses and to businesses that use black- or female-owned subcontractors or suppliers or have a specified employment program for black and female employees, § 126.618.

       At bottom, the dissent differs with us only over the question whether the new ordinance is sufficiently similar to the repealed ordinance that it is permissible to say that the challenged conduct continues — or, as the dissent puts it, whether the ordinance has been “sufficiently altered so as to present a substantially different controversy from the one the District Court originally decided.” Posi, at 671. We believe that the ordinance has not been “sufficiently altered”; the dissent disagrees. As for the merits of that disagreement, the short answer to the dissent’s argument that this case is controlled by Diffenderfer v. Central Baptist Church of Miami,

        Inc., 404 U. S. 412 (1972) (per curiam), and Fusari v. Steinberg, 419 U. S. 379 (1975) — both of which predate City of Mesquite — is that the statutes at issue in those cases were changed substantially, and that there was therefore no basis for concluding that the challenged conduct was being repeated. See Diffenderfer, supra, at 413-414 (“crux of [the] complaint” was that old statute violated Constitution insofar as it authorized tax exemption “for church property used primarily for commercial purposes”; new statute authorized exemption “only if the property is used predominantly for religious purposes”); Fusari, 419 U. S., at 380 (challenged statute was “significantly revised”); id., at 385 (legislature enacted “major revisions” of statute).

       Although Bakke came to us from state court, our decision in ASARCO Inc. v. Kadish, 490 U. S. 605 (1989), does not retroactively render Bakke’s discussion of standing dictum. See Brief for Public Citizen et al. as Amici Curiae 7, n. 4 (suggesting that it might). In ASARCO we held that we had jurisdiction to review the judgment of a state court even though the respondents (plaintiffs in the trial court) “had no standing to sue under the principles governing the federal courts,” 490 U. S., at 623, because the petitioners (defendants in the trial court) “allege[d] a specific injury stemming from the state-court decree,” id., at 617. But we did not hold that it was irrelevant whether the state-court plaintiffs met federal standing requirements; instead we made it clear that a determination that the plaintiffs satisfied those requirements would have “obviated any further inquiry.” Id., at 623, n. 2. Thus, while Bakke’s standing was not a necessary condition for our exercise of jurisdiction, it was sufficient.

       It follows from our definition of “injury in fact” that petitioner has sufficiently alleged both that the city’s ordinance is the “cause” of its injury and that a judicial decree directing the city to discontinue its program would “redress” the injury.

       There has been no suggestion that even if petitioner’s members have standing to sue, petitioner itself does not, because one or more of the prerequisites to "associational standing” have not been satisfied. See Hunt v. Washington State Apple Advertising Comm’n, 432 U. S. 333, 343 (1977). Nor, given the current state of the record, do we have any basis for reaching that conclusion on our own.


author: Justice Thomas Justice Blackmun,

text:
    SOUTH DAKOTA v. BOURLAND, individually and as chairman of the CHEYENNE RIVER SIOUX TRIBE, et al.
    No. 91-2051.
    Argued March 2, 1993 —
    Decided June 14, 1993

      Mark Barnett, Attorney General of South Dakota, argued the cause for petitioner. With him on the briefs was John P. Guhin, Deputy Attorney General.

      Brian Stuart Koukoutchos argued the cause for respondents. With him on the brief were Laurence H. Tribe, Mark C. Van Norman, Steven C. Emery, and Timothy W. Joranko.

      James A. Feldman argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Starr, Acting Assistant Attorney General O’Meara, Edwin S. Kneedler, Edward J. Shawaker, David C. Shilton, and Thomas L. Sansonetti.

      Briefs of amici curiae urging reversal were filed for the State of Montana et al. by Marc Racicot, Attorney General of Montana, and Dearme L. Sandholm, Assistant Attorney General, and by the Attorneys General for their respective States as follows: James H. Evans of Aabama, Grant Woods of Arizona, Daniel E. Dungren of California, Nicholas J. Spaeth of North Dakota, Paul Van Dam of Utah, and Kenneth 0. Eikenberry of Washington; for Corson County, South Dakota, et al. by Kenn A Pugh; and for the International Association of Fish and Wildlife Agencies by Paul A Lenzini.

        William R. Perry, Reid Peyton Chambers, and Charles A Hobbs filed a brief for the Standing Rock Sioux Tribe et al. as amici curiae urging affirmance.

   Justice Thomas

delivered the opinion of the Court.

In this case we consider whether the Cheyenne River Sioux Tribe may regulate hunting and fishing by non-Indians on lands and overlying waters located within the Tribe’s reservation but acquired by the United States for the operation of the Oahe Dam and Reservoir.

I

In 1868, the Fort Laramie Treaty, 15 Stat. 635, established the Great Sioux Reservation, which comprised most of what is now western South Dakota and part of North Dakota. Article II of the treaty provided that the reservation was to be held for the “absolute and undisturbed use and occupation” of Sioux Tribes and that no non-Indians (except authorized government agents) would “ever be permitted to pass over, settle upon, or reside in” the Great Sioux Reservation. Id., at 636. The Act of Mar. 2, 1889, ch. 405, 25 Stat. 888, removed a substantial amount of land from the reservation and divided the remaining territory into several reservations, including the Cheyenne River Reservation, which is located in north-central South Dakota. The 1889 Act preserved those rights of the Sioux under the Fort Laramie Treaty that were “not in conflict” with the newly enacted statute. §19, 25 Stat. 896. The land designated for the Cheyenne River Reservation was held in trust by the United States for the benefit of the Tribe. 949 F. 2d 984, 987 (CA8 1991).

The 1889 Act also authorized the President to allot parcels of land within the reservation to individual Indians. § 8, 25 Stat. 890. Some of these allotted lands were subsequently acquired by persons not members of the Cheyenne River Sioux Tribe. Non-Indians also acquired fee title to some of the unallotted and “surplus” lands on the reservation pursuant to the Indian General Allotment Act of 1887, ch. 119, 24 Stat. 388, and the Act of May 29, 1908, ch. 218, 35 Stat. 460. The Indian General Allotment Act allowed surplus lands to be sold to non-Indians; the Act of 1908 authorized the Secretary of the Interior to open for non-Indian settlement more than 1.6 million acres previously held in trust by the United States. These enactments vastly 'reduced the amount of reservation land held in trust by the United States for the Tribe and its members. Today trust lands comprise less than 50% of the reservation. App. 64.

After severe floods devastated the lower Missouri River basin in 1943 and 1944, Congress passed the Flood Control Act of 1944, ch. 665, 58 Stat. 887. This Act authorized the establishment of a comprehensive flood control plan along the Missouri River, which serves as the eastern border of the Cheyenne River Reservation. The Act also directed the Army Chief of Engineers to “construct, maintain, and operate public park and recreational facilities in reservoir areas,” and provided that the “reservoirs shall be open to public use generally,” subject to “such rules and regulations as the Secretary of War may deem necessary.” §4, 58 Stat. 889-890. Seven subsequent Acts of Congress authorized limited takings of Indian lands for hydroelectric and flood control dams on the Missouri River in both North and South Dakota. See Lower Brule Sioux Tribe v. South Dakota, 711 F. 2d 809, 813, n. 1 (CA8 1983), cert. denied, 464 U. S. 1042 (1984). One of the largest of these takings involved the Oahe Dam and Reservoir Project, for which Congress required the Cheyenne River Sioux Tribe to relinquish 104,420 acres of its trust lands, including roughly 2,000 acres of land underlying the Missouri River. The Tribe’s agreement to “convey to the United States all tribal, allotted, assigned, and inherited lands or interests” needed for the project is memorialized in the Cheyenne River Act of Sept. 3, 1954, 68 Stat. 1191. Pursuant to the Flood Control Act, the United States also acquired for the Oahe Dam and Reservoir Project an additional 18,000 acres that were owned in fee by non-Indians.

Although the Tribe conveyed all interests in the 104,420 acres of former trust lands to the United States, the Cheyenne River Act reserved to the Tribe or tribal members certain rights respecting the use of these lands. Section 6 reserved “mineral rights” to the Tribe or individual tribal landowners, “subject to all reasonable regulations, which may be imposed by the [Army’s] Chief of Engineers.” Id., at 1192. Section 7 gave tribal members the right “without charge to cut and remove all timber and to salvage . . . improvements” until the dam area was impounded. Ibid. Section 9 allowed tribal members to continue residing on the taken land until closure of the dam’s gates. Id., at 1192-1193. Section 10 provided that the Tribe would have the right to “graze stock” on the taken lands and that:

“[The] Tribal Council and the members of said Indian Tribe shall have, without cost, the right of free access to the shoreline of the reservoir including the right to hunt and fish in and on the aforesaid shoreline and reservoir, subject, however, to regulations governing the corresponding use by other citizens of the United States.” Id., at 1193 (emphasis added).

Before this dispute arose, both the Tribe and the State of South Dakota enforced their respective game and fish regulations in the taken area. The Tribe enforced its regulations against all violators; the State limited its enforcement to non-Indians. In 1988, following a dispute between the State and the tribal respondents regarding the 1988 deer hunting season, the Tribe announced that it would no longer recognize state hunting licenses and that hunters within the reservation would be “subject to prosecution in tribal court” unless licensed by the Tribe. App. 58. In response, the State filed this action against the Chairman of the Cheyenne River Sioux Tribe and the Director of Cheyenne River Sioux Tribe Game, Fish and Parks. In its complaint, the State sought to enjoin the Tribe from excluding non-Indians from hunting on nontrust lands within the reservation. In the alternative, the State sought a declaration that the federal takings of tribal lands for the Oahe Dam and Reservoir had reduced the Tribe’s authority by withdrawing these lands from the reservation. Id., at 39-40 (Second Amended Complaint). The District Court concluded that the Cheyenne River Act “did not disestablish the Missouri River boundary of the Cheyenne River Reservation.” Id., at 103. Nevertheless, relying on Montana v. United States, 450 U. S. 544 (1981), the District Court held that § 10 of the Cheyenne River Act clearly abrogated the Tribe’s right to exclusive use and possession of the former trust lands. App. 125. The court further found that “Congress has not expressly delegated to the Tribe hunting and fishing jurisdiction over nonmembers” on the taken lands. Id., at 149. The District Court permanently enjoined the Tribe and its members from exerting such authority.

The Court of Appeals affirmed in part, reversed in part, and remanded. 949 F. 2d 984 (CA8 1991). The court distinguished between the 104,420 acres of former trust lands acquired pursuant to the Cheyenne River Act and the 18,000 acres of former non-Indian fee lands acquired pursuant to the Flood Control Act. As to the former trust lands, the court held that the Tribe had authority to regulate non-Indian hunting and fishing because the Cheyenne River Act did not clearly reveal Congress’ intent to divest the Tribe of its treaty right to do so. As to the 18,000 acres of former fee lands, however, the court found that Montana v. United States and Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408 (1989), controlled. Assuming the 18,000 acres had previously been held in fee by non-Indians pursuant to one of the Allotment Acts, the Court of Appeals noted that:

“Since Montana held that tribes have been divested of their regulatory authority over non-Indians hunting and fishing on land held in fee by non-Indians pursuant to an allotment act, the lack of a grant of such power requires us to conclude that the Tribe does not possess such authority, unless one of the Montana exceptions is met.” 949 F. 2d, at 995.

The Eighth Circuit therefore remanded the case for a determination whether the Tribe could regulate non-Indian hunting and fishing on the former fee lands pursuant to one of the exceptions to the general rule that an Indian tribe’s inherent sovereign powers do not extend to non-Indian activity. We granted certiorari, 506 U. S. 813 (1992), and now reverse.

II

Congress has the power to abrogate Indians’ treaty rights, see, e. g., Rosebud Sioux Tribe v. Kneip, 430 U. S. 584, 594 (1977), though we usually insist that Congress clearly express its intent to do so. See Menominee Tribe v. United States, 391 U. S. 404, 412-413 (1968); United States v. Dion, 476 U. S. 734, 738 (1986). See also County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251, 269 (1992) (“ ‘[Statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit’”) (citations omitted). Our reading of the relevant statutes persuades us that Congress has abrogated the Tribe’s rights under the Fort Laramie Treaty to regulate hunting and fishing by non-Indians in the area taken for the Oahe Dam and Reservoir Project.

The Fort Laramie Treaty granted to the Cheyenne River Sioux Tribe the unqualified right of “absolute and undisturbed use and occupation” of their reservation lands. 15 Stat. 636. We have interpreted identical language in a parallel treaty between the United States and the Crow Tribe as embracing the implicit “power to exclude others” from the reservation and thereby “arguably conferr[ing] upon the Tribe the authority to control fishing and hunting on those lands.” Montana v. United States, supra, at 558-559 (construing the second Fort Laramie Treaty, 15 Stat. 649). Thus, we may conclude that pursuant to its original treaty with the United States, the Cheyenne River Tribe possessed both the greater power to exclude non-Indians from, and arguably the lesser included, incidental power to regulate non-Indian use of, the lands later taken for the Oahe Dam and Reservoir Project.

Like this ease, Montana concerned an Indian Tribe’s power to regulate non-Indian hunting and fishing on lands located within a reservation but no longer owned by the Tribe or its members. Under the General Allotment Act of 1887, ch. 119, 24 Stat. 388, as amended, 25 U. S. C. § 332 et seq., and the Crow Allotment Act of 1920, ch. 224, 41 Stat. 751, Congress had provided for certain Crow lands to be conveyed in fee to non-Indians for homesteading. We held that because the Tribe thereby lost the right of absolute use and occupation of lands so conveyed, the Tribe no longer had the incidental power to regulate the use of the lands by non-Indians. See 450 U. S., at 559. Similarly, six Members of this Court, in Brendale v. Confederated Tribes, determined that at least with regard to the “open” portion of the Yakima Reservation, the Yakima Tribe had lost the authority to zone lands that had come to be owned in fee by non-Indians. 492 U. S., 423-424 (opinion of White, J.); id., at 444-445 (opinion of Stevens, J.). Because significant portions of that part of the reservation had been allotted under the General Allotment Act and had passed to non-Indians, those Justices concluded that the treaty’s “exclusive use and benefit” provision was inapplicable to those lands and therefore could not confer tribal authority to regulate the conduct of non-Indians there. Id., at 422, 445.

Montana and Brendale establish that when an Indian tribe conveys ownership of its tribal lands to non-Indians, it loses any former right of absolute and exclusive use and occupation of the conveyed lands. The abrogation of this greater right, at least in the context of the type of area at issue in this case, implies the loss of regulatory jurisdiction over the use of the land by others. In taking tribal trust lands and other reservation lands for the Oahe Dam and Reservoir Project, and broadly opening up those lands for public use, Congress, through the Flood Control and Cheyenne River Acts eliminated the Tribe’s power to exclude non-Indians from these lands, and with that the incidental regulatory jurisdiction formerly enjoyed by the Tribe.

The Flood Control Act authorized the construction, management, and operation of public recreational facilities on the lands taken for the Oahe Reservoir. § 4, 58 Stat. 889, as amended, 16 U. S. C. § 460d. Section 4 of the Act provides that “all such projects shall be open to public use generally” for various “recreational purposes,... when such use is determined by the Secretary of the Army not to be contrary to the public interest, all under such rules and regulations as the Secretary of the Army may deem necessary.” Section 4 farther mandates “ready access to and exit from such water areas ... for general public use.” Thus, the clear effect of the Flood Control Act is to open the lands taken for the Oahe Dam and Reservoir Project for the general recreational use. of the public. Because hunting and fishing are “recreational purposes,” the Flood Control Act affirmatively allows non-Indians to hunt and fish on such lands, subject to federal regulation. The Act also clearly prohibits any “use” of the lands “which is inconsistent with the laws for the protection of fish and game of the State in which such area is situated” or which is determined by the Secretary of the Army to be “contrary to the public interest.” Ibid.

If the Flood Control Act leaves any doubt whether the Tribe retains its original treaty right to regulate non-Indian hunting and fishing on lands taken for federal water projects, the Cheyenne River Act extinguishes all such doubt. Section II of that Act declares that the sum paid by the Government to the Tribe for former trust lands taken for the Oahe Dam and Reservoir Project, “shall be in final and complete settlement of all claims, rights, and demands” of the Tribe or its allottees. 68 Stat. 1191. This provision reliably indicates that the Government and the Tribe understood the Act to embody the full terms of their agreement, including the various rights that the Tribe and its members would continue to enjoy after conveying the 104,420 acres to the Government. The Tribe’s § IX “right of free access to the shoreline of the reservoir includ[es] the right to hunt and fish” but is “subject.. .to regulations governing the corresponding use by other citizens of the United States.” Id., at 1193 (emphasis added). If Congress had intended by this provision to grant the Tribe the additional right to regulate hunting and fishing, it would have done so by a similarly explicit statutory command. The rights granted the Tribe in § IX stand in contrast to the expansive treaty right originally granted to the Tribe of “absolute and undisturbed use,” which does encompass the right to exclude and to regulate. See Montana, 450 U. S., at 554, 558.

At oral argument, respondents insisted that they did not claim the right to exclude nonmembers from the taken area, but only the right to prevent nonmembers from hunting or fishing without appropriate tribal licenses. See Tr. of Oral Arg. 27-28, 30-31. It is ultimately irrelevant whether respondents claim a power to exclude. Congress gave the Army Corps of Engineers, not the Tribe, regulatory control over the taken area. And as we have noted, an abrogated treaty right of unimpeded use and occupation of lands “can no longer serve as the basis for tribal exercise of the lesser included power” to regulate. Brendale, 492 U. S., at 424. In the absence of applicable Army Corps regulations allowing the Tribe to assert regulatory jurisdiction over the project lands, we conclude that the Flood Control Act’s open-access mandate and the Cheyenne River Act’s relevant provisions affirmatively abrogate the Tribe’s authority to regulate entry onto or use of these lands.

The Court of Appeals found Montana inapposite with respect to the 104,420 acres of former trust lands because “[t]he purpose of the [Cheyenne River] Act, unlike that of the Allotment Act at issue in Montana, was not the destruction of tribal self-government, but was only to acquire the property rights necessary to construct and operate the Oahe Dam and Reservoir.” 949 F. 2d, at 993. To focus on purpose is to misread Montana. In Montana, the Court did refer to the purpose of the Allotment Acts and discussed the legislative debates surrounding the allotment policy, as well as Congress’ eventual repudiation of the policy in 1934 by the Indian Reorganization Act, 45 Stat. 984, 25 U. S. C. § 461 et seq. 450 U. S., at 559-560, n. 9. However, at the end of this discussion, the Court unequivocally stated that “what is relevant ... is the effect of the land alienation occasioned by that policy on Indian treaty rights tied to Indian use and occupation of reservation land.” 450 U. S., at 560, n. 9 (emphasis added). Thus, regardless of whether land is conveyed pursuant to an Act of Congress for homesteading or for flood control purposes, when Congress has broadly opened up such land to non-Indians, the effect of the transfer is the destruction of pre-existing Indian rights to regulatory control. Although Montana involved lands conveyed in fee to non-Indians within the Crow Reservation, Montana’s framework for examining the “effect of the land alienation” is applicable to the federal takings in this case.

The takings at issue here do differ from the conveyances of fee title in Montana, however, in that the terms of the Cheyenne River Act preserve certain limited land-use rights belonging to the Tribe. It could be argued that by reserving these rights, Congress preserved the right to regulate use of the land by non-Indians. Thus, the Court of Appeals treated the mineral, grazing, and timber rights retained by the Tribe under the Cheyenne River Act as evidence that the taking “was not a simple conveyance of land and all attendant interests in the land,” 949 F. 2d, at 993, and the court accordingly concluded that Congress had not abrogated the Tribe’s pre-existing regulatory authority. We disagree. Congress’ explicit reservation of certain rights in the taken area does not operate as an implicit reservation of all former rights.

Our decision in United States v. Dion, 476 U. S. 734 (1986), supports this conclusion. In Dion, we considered whether an Indian who takes an eagle on tribal land violates the Bald Eagle Protection Act. We demanded “clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.” Id., at 740. The Bald Eagle Protection Act contains an exemption allowing the Secretary of the Interior to permit the taking of an eagle “for the religious purposes of Indian tribes” and for other narrow purposes found to be compatible with the goal of eagle preservation. 16 U. S. C. § 668a. We found this exemption “difficult to explain except as a reflection of an understanding that the statute otherwise bans the taking of eagles by Indians.” 476 U. S., at 740. Likewise, we cannot explain §X of the Cheyenne River Act and §4 of the Flood Control Act except as indications that Congress sought to divest the Tribe of its right to “absolute and undisturbed use and occupation” of the taken area. When Congress reserves limited rights to a tribe or its members, the very presence of such a limited reservation of rights suggests that the Indians would otherwise be treated like the public at large.

Ill

Respondents and their amici raise several alternative arguments, none of which undercuts our statutory analysis. Respondents argue, for example, that their right to regulate hunting and fishing in the taken area was not abrogated because the $10,644,014 appropriated in the Cheyenne River Act did not include compensation for the Tribe’s loss of licensing revenue. This sum, respondents argue, did include payment for, inter alia, the loss of grazing permit revenues and the destruction of wildlife, wild fruit, and other natural resources, as those losses were itemized in the House Report on the Cheyenne River Act. See Brief for Respondents 9 (citing H. R. Rep. No. 2484, 83d Cong., 2d Sess., 4 (1954)). To hold their regulatory authority divested, respondents contend, would imply that Congress breached its duty to compensate the Tribe for all taken resources. The Act itself, however, does not itemize the losses covered by the compensation but rather plainly states that the appropriated funds constitute a “final and complete settlement of all claims, rights, and demands” of the Tribe arising out of the Oahe Dam and Reservoir Project. § II, 68 Stat. 1191. Given the express text of the Act, we will not conclude that the Act reserved to the Tribe the right to regulate hunting and fishing simply because the legislative history does not include an itemized amount for the Tribe’s loss of revenue from licensing those activities.

General principles of “inherent sovereignty” also do not enable the Tribe to regulate non-Indian hunting and fishing in the taken area. Although Indian tribes retain inherent authority to punish members who violate tribal law, to regulate tribal membership, and to conduct internal tribal relations, United States v. Wheeler, 435 U. S. 313, 326 (1978), the “exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation,” Montana, 450 U. S., at 564. Having concluded that Congress clearly abrogated the Tribe’s pre-existing regulatory control over non-Indian hunting and fishing, we find no evidence in the relevant treaties or statutes that Congress intended to allow the Tribe to assert regulatory jurisdiction over these lands pursuant to inherent sovereignty.

The question remains, however, whether the Tribe may invoke other potential sources of tribal jurisdiction over non-Indians on these lands. Montana discussed two exceptions to “the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” Id., at 565. First, a tribe may license or otherwise regulate activities of nonmembers who enter “consensual relationships” with the tribe or its members through contracts, leases, or other commercial dealings. Ibid. Second, a “tribe may . . . retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Id., at 566. The District Court made extensive findings that neither of these exceptions applies to either the former trust lands or the former fee lands. See App. 142-149. And although the Court of Appeals instructed the District Court to undertake a new analysis of the Montana exceptions on remand as to the 18,000 acres, it did not pass upon the District Court’s previous findings regarding the taken area as a whole. See 949 F. 2d, at 995. Thus, we leave this to be resolved on remand.

Finally, respondents contend that Army Corps regulations permit the Tribe to regulate non-Indian hunting and fishing. Although Congress abrogated the Tribe’s right to regulatory control in the taken area through the Flood Control and Cheyenne River Acts, it gave primary regulatory authority over the water project lands to the Army Corps of Engineers. 16 U.S.C. § 460d. See 36 CFR § 327.1(a) (1992). The Corps has authority to promulgate regulations “not inconsistent with . . . treaties and Federal laws and regulations” concerning “the rights of Indian Nations.” § 327.1(f). The Corps permits “[hjunting, fishing and trapping ... except in areas where prohibited by the District Engineer.” §327.8. This regulation provides that “[a]ll Federal, state and local laws governing these activities apply on project lands and waters, as regulated by authorized enforcement officials.” Ibid, (emphasis added). See also §327.26. Respondents argue that these regulations “not only allow for tribal regulation of hunting and fishing, they affirmatively establish the primacy of tribal treaty rights over both public use rights and state and federal regulatory interests.” Brief for Respondents 33 (emphasis in original) (footnote omitted). Insisting that “tribal” law is a subset of “local” law, respondents contend that the Tribe’s hunting and fishing laws apply to all who pass through the taken area. Id., at 33, n. 39.

Respondents did not rely on the Army Corps’ regulations in the proceedings below. And although the United States as amicus curiae asserted at oral argument that §327.8 leaves all pre-existing state, local, and tribal hunting and fishing regulations in effect on project lands, see Tr. of Oral Arg. 50, it did not even mention the Army Corps regulation in its brief. Moreover, it is inconsistent with evidence in the record that the Corps in fact believed that jurisdiction over non-Indian hunting and fishing on water project lands is a matter of state law. See App. 288, 284. Thus, we find this argument undeveloped. Under these circumstances, we decline to defer to the Government’s litigating position.

IV

“[Tjreaty rights with respect to reservation lands must be read in light of the subsequent alienation of those lands.” Montana, 450 U. S., at 561. In this case, the United States took former trust lands pursuant to the Flood Control Act, which mandated that all water project lands be open for the general public’s use and recreational enjoyment. The Cheyenne River Act reserved some of the Tribe’s original treaty rights in the former trust lands (including the right to hunt and fish) but not the right to exert regulatory control. These statutes clearly abrogated the Tribe’s “absolute and undisturbed use and occupation” of these tribal lands, 15 Stat. 686, and thereby deprived the Tribe of the power to license non-Indian use of the lands. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Blackmun,

with whom

Justice Souter joins, dissenting.

The land at issue in this case is part of the Cheyenne River Sioux Reservation. The United States did not take this land with the purpose of destroying tribal government or even with the purpose of limiting tribal authority. It simply wished to build a dam. The Tribe’s authority to regulate hunting and fishing on the taken area is consistent with the uses to which Congress has put the land, and, in my view, that authority must be understood to continue until Congress clearly decides to end it.

The majority’s analysis focuses on the Tribe’s authority to regulate hunting and fishing under the Fort Laramie Treaty of 1868, 15 Stat. 635, see ante, at 687-694, with barely a nod acknowledging that the Tribe might retain such authority as an aspect of its inherent sovereignty, see ante, at 694-695. Yet it is a fundamental principle of federal Indian law that Indian tribes possess “ ‘inherent powers of a limited sovereignty which has never been extinguished.’ ” United States v. Wheeler, 435 U. S. 313, 322 (1978) (emphasis omitted), quoting F. Cohen, Handbook of Federal Indian Law 122 (1945). This Court has recognized that the inherent sovereignty of Indian tribes extends “ ‘over both their members and their territory 435 U. S., at 323 (emphasis added), quoting United States v. Mazurie, 419 U. S. 544, 557 (1975). Inherent tribal sovereignty “exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.” 435 U. S., at 323 (emphases added). This Court has found implicit divestiture of inherent sovereignty necessary only “where the exercise of tribal sovereignty would be inconsistent with the overriding interests of the National Government, as when the tribes seek to engage in foreign relations, alienate their lands to non-Indians without federal consent, or prosecute non-Indians in tribal courts which do not accord the full protections of the Bill of Rights.” Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134, 153-154 (1980).

The Fort Laramie Treaty confirmed the Tribe’s sovereignty over the land in question in the most sweeping terms by providing that it be “set apart for the absolute and undisturbed use and occupation of the [Sioux].” 15 Stat. 636. The majority acknowledges that this provision arguably conferred “‘upon the Tribe the authority to control hunting and fishing on those lands.’” Ante, at 688, quoting Montana v. United States, 450 U. S. 544, 558-559 (1981). Because “treaties should be construed liberally in favor of the Indians,” County of Oneida v. Oneida Indian Nation, 470 U. S. 226, 247 (1985), the majority is right to proceed on the assumption that authority to control hunting and fishing is included in the Fort Laramie Treaty.

The question, then, is whether Congress intended to abrogate the Tribe’s right to regulate non-Indian hunting and fishing on the taken area — a right flowing from its original sovereign power that was expressly confirmed by treaty This Court does not lightly impute such an intent to Congress. There must be “clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.” United States v. Dion, 476 U. S. 734, 740 (1986); see also Wheeler, 435 U. S., at 323 (implicit withdrawal of inherent sovereignty only where “necessary”); Colville, 447 U. S., at 153-154 (same).

The majority, however, points not even to a scrap of evidence that Congress actually considered the possibility that by taking the land in question it would deprive the Tribe of its authority to regulate non-Indian hunting and fishing on that land. Instead, it finds Congress’ intent implicit in the fact that Congress deprived the Tribe of its right to exclusive use of the land, that Congress gave the Army Corps of Engineers authority to regulate public access to the land, and that Congress failed explicitly to reserve to the Tribe the right to regulate non-Indian hunting and fishing. Despite its citation of Dion, supra, Menominee Tribe v. United States, 391 U. S. 404 (1968), and County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251 (1992), see ante, at 687, the majority adopts precisely the sort of reasoning-by-implication that those eases reject.

The majority supposes that the Tribe’s right to regulate non-Indian hunting and fishing is incidental to and dependent on its treaty right to exclusive use of the area and that the Tribe’s right to regulate was therefore lost when its right to exclusive use was abrogated. See ante, at 689. This reasoning fails on two counts. First, treaties “'must ... be construed, not according to the technical meaning of [their] words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.’” Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 676 (1979), quoting Jones v. Meehan, 175 U. S. 1, 11 (1899). I find it implausible that the Tribe here would have thought every right subsumed in the Fort Laramie Treaty’s sweeping language to be defeated the moment they lost the right to exclusive use of their land. Second, the majority’s myopic focus on the Treaty ignores the fact that this Treaty merely confirmed the Tribe’s preexisting sovereignty over the reservation land. Even on the assumption that the Tribe’s treaty-based right to regulate hunting and fishing by non-Indians was lost with the Tribe’s power to exclude non-Indians, its inherent authority to regulate such hunting and fishing continued.

The majority’s reliance on Montana and Brendale in this regard is misplaced. In those cases, the reservation land at issue had been conveyed in fee to non-Indians pursuant to the Indian General Allotment Act of 1887, 24 Stat. 388, which aimed at the eventual elimination of reservations and the assimilation of Indian peoples. See Montana, 450 U. S., at 559, n. 9. In Montana, the Court concluded: “It defies common sense to suppose that Congress would intend that non-Indians purchasing allotted lands would become subject to tribal jurisdiction when an avowed purpose of the allotment policy was the ultimate destruction of tribal government.” Id., at 560, n. 9. See also Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 423 (1989) (opinion of White, J.). The majority finds the purpose for which the land is alienated irrelevant, relying on Montana’s statement that '"what is relevant ... is the effect of the land alienation occasioned by that policy on Indian treaty rights tied to Indian use and occupation of reservation land.’” Ante, at 692, quoting Montana, 450 U. S., at 560, n. 9 (emphasis added by Court). This statement, however, simply responded to an argument that “[t]he policy of allotment and sale of surplus reservation land was ... repudiated in 1934.” Ibid. Read in context, the language on which the majority relies in no way rejects Congress’ purpose as irrelevant but rather specifies which congressional purpose is relevant— i. e., its purpose at the time Indian land is alienated.

- In this case, as the majority acknowledges, see ante, at 683-684, Congress’ purpose was simply to build a dam. Congress also provided that the taken area should be open to non-Indians for “recreational purposes.” See ante, at 689. But these uses of the land are perfectly consistent with continued tribal authority to regulate hunting and fishing by non-Indians. To say that non-Indians may hunt and fish in the taken area is not to say that they may do so free of tribal regulation any more than it is to say that they may do so free of state or federal regulation. Even if the Tribe lacks the power to exclude, it may sanction with fines and other civil penalties those who violate its regulations.

Apparently the majority also believes that tribal authority to regulate hunting and fishing is inconsistent with the fact that Congress has given the Army Corps of Engineers authority to promulgate regulations for use of the area by the general public. See ante, at 691, 692, and n. 13. I see no inconsistency. The Corps in fact has decided not to promulgate its own hunting and fishing regulations and instead has provided that “[a]ll Federal, state and local laws governing [hunting, fishing, and trapping] apply on project lands and waters.” 36 CFR § 327.8 (1992); see Tr. of Oral Arg. 50. This regulation clearly envisions a system of concurrent jurisdiction over hunting and fishing in the taken area. The majority offers no explanation why concurrent jurisdiction suddenly becomes untenable when the local authority is an Indian tribe. To the extent that such a system proves unworkable, the regulations themselves provide that tribal rights prevail, for part 327 applies to “lands and waters which are subject to treaties and Federal laws and regulations concerning the rights of Indian Nations” only to the extent that part 327 is “not inconsistent with such treaties and Federal laws and regulations.” § 327.1(f).

In its search for a statement from Congress abrogating the Tribe’s right to regulate non-Indian hunting and fishing in the taken area, the majority turns to a provision in the Cheyenne River Act that the compensation paid for the taken area “'shall be in final and complete settlement of all claims, rights, and demands’ of the Tribe.” Ante, at 690, quoting Pub. L. 776, § II, 68 Stat. 1191. But this provision simply makes clear that Congress intended no further compensation for the rights it took from the Tribe. It does not address the question of which rights Congress intended to take or, more specifically, whether Congress intended to take the Tribe’s right to regulate hunting and fishing by non-Indians. The majority also relies on the fact that §IX of the Act expressly reserved to the Tribe the right to hunt and fish but not the right to regulate hunting and fishing. See ante, at 690. To imply an intent to abrogate Indian rights from such congressional silence once again ignores the principles that “Congress’ intention to abrogate Indian treaty rights be clear and plain,” Dion, 476 U. S., at 738, and that “'statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.’” County of Yakima, 502 U. S., at 269, quoting Montana v. Blackfeet Tribe, 471 U. S. 759, 766 (1985). Congress’ failure to address the subject of the Tribe’s regulatory authority over hunting and fishing means that the Tribe’s authority survives and not the reverse.

It is some small consolation that the Court’s decision permits the Federal Government to remedy this situation with a more explicit regulation authorizing the Tribe to regulate hunting and fishing in the taken area. See ante, at 691. I regret, however, that the Court’s decision makes such action necessary. I dissent.

       Congress authorized the Departments of the Army and the Interior to negotiate contracts with the Cheyenne River Tribe and the Standing Rock Sioux Tribe for land needed for the Oahe Dam and Reservoir. See ch. 1120, 64 Stat. 1093.

      The Tribe received a total of $10,644,014 in exchange for the 104,420 acres of land and interests therein taken by the United States. This amount included compensation for the loss of wildlife, the loss of revenue from grazing permits, the costs of negotiating the agreement, and the costs of “complete rehabilitation” of all resident members and the restoration of tribal life. See §§ 2, 5, and 13, 68 Stat. 1191-1194.

       The record does not reflect how these lands had come to be owned by non-Indians.

       The question on which we granted certiorari assumes the United States acquired these lands in fee, and the District Court referred to the “transfer of fee ownership from the Tribe to the United States.” App. 125. The Court of Appeals, however, referred to the lands as “neither non-Indian-owned fee land nor trust land.” 949 F. 2d 984, 990 (CA8 1991). Because the nature of the Government’s title is not relevant to our analysis, we may assume that the United States owns the 104,420 acres in fee.

       The Cheyenne River Act became effective upon confirmation and acceptance in writing by “three-quarters of the adult Indians of the Cheyenne River Reservation in South Dakota.” 68 Stat. 1191. Of the Indians eligible to vote, 75.35% approved the Act; of those who actually voted, 92% voted for approval. See App. 266.

       Although the District Court ruled on the issue of the Tribe’s regulatory jurisdiction over Indians who are not members of the Cheyenne River Sioux, the Court of Appeals vacated that portion of the opinion. It noted that the “issue of tribal jurisdiction over nonmember Indians was neither pled nor tried; the complaint was limited to the question of jurisdiction over non-Indians.” 949 F. 2d, at 990. The State did not raise this issue in its petition for certiorari, and hence the only question before us is whether the Tribe may regulate non-Indians who hunt and fish in the taken area.

       The District Court found no evidence that the Tribe has ever imposed criminal sanctions on a nonmember who violated tribal hunting or fishing ordinances. App. 87. Throughout this litigation, respondents have disavowed any criminal jurisdiction over nonmembers, asserting instead that the sanctions they seek to impose on unlicensed hunters and fishermen are purely civil in nature. Id., at 85. The State, however, has contended that these tribal regulations will be enforced through criminal sanctions. The District Court dismissed the State’s request for a declaration that the Tribe has “no jurisdiction” to arrest and try non-Indians on the reservation, on the ground that the “purported controversy lacks sufficient immediacy and reality.” Id., at 88 (internal quotation marks omitted). In any event, we have previously held that “the inherent sovereignty of the Indian tribes does not extend to criminal jurisdiction over non-Indians who commit crimes on the reservation.” Duro v. Reina, 495 U. S. 676, 684 (1990) (emphasis added). See also Oliphant v. Suquamish Tribe, 435 U. S. 191, 210 (1978).

       Although respondents did not cross-petition for review of this portion of the Court of Appeals’ decision, the State argues that the Court of Appeals’ general approach in distinguishing between the 18,000 acres of non-Indian fee lands and the 104,420 acres of former trust lands was “without basis in this Court’s rulings,” and thus “wrong and unworkable.” Brief for Petitioner 48. We read the question presented as fairly encompassing the issue of the Tribe’s regulatory authority over both the 18,000 acres of former non-Indian fee lands and the 104,420 acres of former trust lands.

       The District Court found that the taken area is not a “closed” or pristine area, and the Court of Appeals did not disturb that finding. 949 F. 2d, at 995. We agree that the area at issue here has been broadly opened to the public. Thus, we need not reach the issue of a tribe’s regulatory authority in other contexts.

       The dissent apparently finds ambiguity in this provision, on the ground that it “does not address the question of which rights Congress intended to take.” Post, at 703. The self-evident answer is that when Congress used the term “all claims, rights, and demands” of the Tribe, 68 Stat. 1191, it meant all claims, rights, and demands.

       Certainly, the power to regulate is of diminished practical use if it does not include the power to exclude: Regulatory authority goes hand in hand with the power to exclude. See Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 423-424 (1989) (opinion of White, J.).

       We do not address whether South Dakota has regulatory control over hunting and fishing in the taken area. In its declaratory judgment action, the State sought only a judicial determination regarding the Tribe's claim to regulatory jurisdiction.

       The dissent argues that our reliance on Montana v. United States and Brendale is misplaced and insists that in Montana we did not reject the relevance of congressional purpose, but merely “specifie[d] which congressional purpose is relevant — i. e., its purpose at the time Indian land is alienated.” Post, at 702. We are unable to wring such meaning out of Montana’s simple statement that “what is relevant... is the effect of the land alienation.” 450 U. S., at 560, n. 9 (emphasis added).
      Moreover, even when the dissent engages in the congressional purpose inquiry that Montana eschews, it errs in stating that Congress “simply wished to build a dam.” Post, at 698. In fact, as the dissent acknowledges, post, at 702, Congress in the Flood Control Act also mandated that the water projects serve as recreational facilities for the general public for activities such as “boating, swimming, bathing, [and] fishing,” subject to such “rules and regulations as the Secretary of the Army may deem necessary.” 16 U. S. C. § 460d. Contrary to the dissent's reasoning, see post, at 700, that Congress vested the Secretary of the Army with broad regulatory authority over the management of these lands is explicit evidence that Congress “considered the possibility that by taking the land ... it would deprive the Tribe of its authority to regulate non-Indian hunting and fishing on that land.” Ibid.

       The Bald Eagle Protection Act makes it a federal crime to “take, possess, sell, purchase, [or] barter... any bald eagle... or any golden eagle.” 16 U.S.C. § 668(a).

       The dissent's complaint that we give “barely a nod” to the Tribe’s inherent sovereignly argument, post, at 698, is simply another manifestation of its disagreement with Montana, which announced “the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe,” 450 U. S., at 565. While the dissent refers to our “myopic focus,” post, at 701, on the Tribe’s prior treaty right to “absolute and undisturbed use and occupation” of the taken area, it shuts both eyes to the reality that after Montana, tribal sovereignty over nonmembers “cannot survive without express congressional delegation,” 450 U. S., at 564, and is therefore not inherent.

       The dissent simply assumes that the phrase “local laws” in 36 CFR §327.8 (1992) includes “tribal” laws. Post, at 702-703. However, an Army Corps regulation outlining the procedures for evaluating Department of the Army water use permit applications indicates that the Army Corps, in fact, distinguishes between the terms “tribal” and “local.” See 33 CFR §320.4(j)(2) (1992) (“[t]he primary responsibility for determining zoning and land use matters rests with state, local and tribal governments”) (emphasis added). Furthermore, we are bewildered that the dissent cites § 327.1(f) for the proposition that “the regulations themselves provide that tribal rights prevail.” Post, at 702-703. Section 327.1(f) provides that the regulations in part 327 apply “to the extent that [they] are not inconsistent with ... treaties and Federal laws and regulations.” This is simply to say that the regulations do not purport to abrogate treaty rights — not a startling proposition. The regulation says nothing about whether the Flood Control Act or Cheyenne River Act has already terminated those rights.

       The District Court found that conveyance of the taken area to the United States did not diminish the reservation, see App. 96-104, and South Dakota did not appeal that determination. See also 949 F. 2d 984, 990 (CA8 1991) (case below) (“[I]t seems clear . . . that the Cheyenne River Act did not disestablish the boundaries of the Reservation”).

       Neither South Dakota nor the majority is able to identify any overriding federal interest that would justify the implicit divestiture of the Tribe’s authority to regulate non-Indian hunting and fishing. In rejecting the Tribe’s inherent sovereignty argument, the majority relies on the suggestion in Montana, v. United States, 450 U. S. 544 (1981), that “the ‘exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.’” Ante, at 694-695, quoting Montana, 450 U. S., at 564. I already have had occasion to explain that this passage in Montana is contrary to 150 years of Indian-law jurisprudence and is not supported by the cases on which it relied. See Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 450-456 (1989) (opinion concurring in judgment and dissenting). There is no need to repeat that explanation here.

       The majority’s assertion that this Court’s decision in United States v. Dion, 476 U. S. 734 (1986), supports its conclusion here, see ante, at 693, is difficult to fathom. In Dion, this Court found that an exemption in the Bald Eagle Protection Act permitting the taking of eagles for religious purposes was “difficult to explain except as a reflection of an understanding that the statute otherwise bans the talcing of eagles by Indians.” 476 U. S., at 740. The Court correctly notes that §X of the Cheyenne River Act and § 4 of the Flood Control Act cannot be understood except as indications that Congress intended to divest the Tribe of its right to exclusive use of the taken area. See ante, at 693. It does not follow, however, that Congress intended to divest the Tribe of its right to regulate the hunting and fishing of non-Indians in the taken area. As already noted, continued tribal authority over hunting and fishing is consistent with public access. And it certainly does not follow from Dion, that “[w]hen Congress reserves limited rights to a tribe or its members, the very presence of such a limited reservation of rights suggests that the Indians would otherwise be treated like the public at large.” Ante, at 693-694. Indeed, Dion stands for the directly opposite presumption that implicit abrogation of treaty rights is disfavored and that “clear evidence” is required “that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.” 476 U. S., at 740.


text:
    May 3, 1993
    No. 92-8491 (A-821).
    Johnson v. Singletary, Secretary, Florida Department of Corrections.
   Sup. Ct. Fla. Application for stay of execution of sentence of death, presented to Justice Kennedy, and by him referred to the Court, denied. Certiorari denied.


text:
    May 4, 1993
    No. A-834.
    Stewart v. Texas.
   Application for stay of execution of sentence of death, presented to Justice Scalia, and by him referred to the Court, denied.

Justice Blackmun and Justice Stevens would grant the application for stay of execution.


text:
    May 8, 1993
    No. 92-8637 (A-842).
    Johnson v. Singletary, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Application for stay of execution of sentence of death, presented to Justice Kennedy, and by him referred to the Court, denied. Certiorari denied.

Justice Scalia took no part in the consideration or decision of this application and this petition.


text:
    No. 92-8638 (A-843).
    Johnson v. Singletary, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Application for stay of execution of sentence of death, presented to Justice Kennedy, and by him referred to the Court, denied. Certiorari denied.

Justice Blackmun and Justice Stevens would grant the application for stay of execution. Justice Scalia took no part in the consideration or decision of this application and this petition.


text:
    MAY 11, 1993
    No. 92-8685 (A-852).
    Torres Herrera v. Texas.
   Ct. Crim. App. Tex. Application for stay of execution of sentence of death, presented to Justice Scalia, and by him referred to the Court, denied. Certiorari denied.


text:
    May 12, 1993
    No. A-854.
    Torres Herrera v. Texas.
   Application for stay of execution of sentence of death, presented to Justice Scalia, and by him referred to the Court, denied.


text:
    No. A-855.
    Torres Herrera v. Collins, Director, Texas Department of Criminal Justice, Institutional Division.
   Application for stay of execution of sentence of death, presented to Justice Scalia, and by him referred to the Court, denied.

Justice Blackmun and Justice Stevens would grant the application for stay of execution.


text:
    May 17, 1993
    No. 92-6173.
    Bruce v. United States.
   C. A. 11th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Stinson v. United States, ante, p. 36.


text:
    No. 92-6612.
    Wright v. United States.
   C. A. 11th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Stinson v. United States, ante, p. 36.


text:
    No. 92-6907.
    Small v. United States.
   C. A. 11th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Stinson v. United States, ante, p. 36.


text:
    No.---.
    Hemmerle v. Federal Deposit Insurance Corporation, as Receiver for Sunrise Savings & Loan Assn.
   Motion for reconsideration of order dated March 29, 1993 [507 U. S. 1002], denied.


text:
    No.---.
    Fisher v. Oklahoma.
   Motion for leave to proceed informa pawperis without an affidavit of indigency executed by petitioner granted.


text:
    No.---.
    No.---.
    No. ——.
    Morrissey v. Singletary, Secretary, Florida Department of Corrections; Cash v. Borg, Warden, et al.; and Milton v. United States.
   Motions to direct the Clerk to file petitions for writs of certiorari out of time denied.


text:
    No. A-546.
    McCurdy v. United States.
   Application for release pending appeal, addressed to Justice Blackmun and referred to the Court, denied.


text:
    No. D-1224.
    [For earlier order herein, see 506 U. S. 1045.]
    In re Disbarment of Linn.
   Disbarment entered.


text:
    No. D-1228.
    [For earlier order herein, see 507 U. S. 902.]
    In re Disbarment of Buck.
   Disbarment entered.


text:
    No. D-1229.
    [For earlier order herein, see 507 U. S. 902.]
    In re Disbarment of Veith.
   Disbarment entered.


text:
    No. D-1230.
    [For earlier order herein, see 507 U. S. 903.]
    In re Disbarment of Roth.
   Disbarment entered.


text:
    No. D-1258.
    In re Disbarment of Smith.
   It is ordered that Jerry B. Smith, of Coral Springs, Md., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-1259.
    In re Disbarment of Brown.
   It is ordered that Chester L. Brown, of Birmingham, Ala., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-1260.
    In re Disbarment of Blackburn.
   It is ordered that James Leslie Blackburn, of Raleigh, N. C., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-1261.
    In re Disbarment of DeLorenzo.
   It is ordered that Richard A. DeLorenzo, of Peekskill, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-1262.
    In re Disbarment of Warwick.
   It is ordered that William Robert Warwick, of Long Branch, N. J., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-1263.
    In re Disbarment of Izzi.
   It is ordered that Dennis James Izzi, of Palm Springs, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-1264.
    In re Disbarment of Clark.
   It is ordered that Michael A. Clark, of San Diego, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.