author: Per Curiam. Justice Stevens,

text:
    IN RE BLODGETT, SUPERINTENDENT, WASHINGTON STATE PENITENTIARY, et al.
    No. 91-716.
    Decided January 13, 1992
   Per Curiam.

The Court has before it a petition from the State of Washington for a writ of mandamus to the Court of Appeals for the Ninth Circuit. The petition seeks an order directing the Court of Appeals to issue its decision on an appeal from the District Court’s denial of a second federal habeas petition in a capital case. The appeal was argued and submitted to the Court of Appeals on June 27, 1989, and no decision has been forthcoming.

Charles Rodman Campbell was convicted of multiple murders in 1982 in the State of Washington and sentenced to death. After his conviction was affirmed on direct appeal and we denied certiorari, Campbell v. Washington, 471 U. S. 1094 (1985), his first federal habeas petition was filed in July-1985 in the United States District Court for the Western District of Washington. Proceedings in that matter were completed when we denied certiorari in November 1988. Campbell v. Kincheloe, 488 U. S. 948. No relief was granted.

In March 1989, Campbell filed a second federal habeas petition in the same District Court. The court acted with commendable dispatch, holding a hearing and issuing a written opinion denying a stay or other relief within days after the second petition was filed. On March 28, 1989, Campbell appealed to the Ninth Circuit. The Court of Appeals granted an indefinite stay of execution and set a briefing schedule. The case was argued and submitted in June 1989, but no decision was announced and the stay of execution remains in effect. The Washington attorney general sent letters to the panel in April and October 1990 inquiring about the status of the case, but neither letter was answered.

In January 1990, Campbell filed a motion to withdraw certain issues from consideration by the Ninth Circuit panel, and he renewed this motion in April. The panel took no action. In July 1990, Campbell filed his third state action for collateral relief, a personal restraint petition, with the Washington Supreme Court. In September, Campbell again moved the Court of Appeals to withdraw three issues from consideration in the case that it was still holding under submission, leaving eight others to be decided. The panel did not respond until by order of February 21, 1991, it noted Campbell’s motion to withdraw the issues, requested a report on the status of the state-court proceedings, and vacated its own submission of the case. Both Washington and Campbell responded that all of the issues pending before the Ninth Circuit had been exhausted. The State requested that the case be resubmitted, but the panel did not do so.

The Washington Supreme Court denied Campbell’s third personal restraint petition on its merits on March 21, 1991. On June 10, 1991, Campbell filed a document advising the Court of Appeals panel that he desired to discharge his attorneys and proceed pro se and that he would file a third federal habeas petition in the District Court. At that point more than two years had passed since the Ninth Circuit had heard oral argument in the case. Almost two months later, on August 7, 1991, the panel granted the motion to relieve counsel, directed Campbell to file his third federal habeas petition by August 30, and announced its intention to wait for the District Court’s ruling before taking further action. The District Court has set a briefing schedule for the third petition.

On October 25, 1991, the Washington attorney general filed the mandamus petition now before us, and on November 22, the Court of Appeals and the members of the panel filed a response. Neither the response nor the record reveals any plausible explanation or reason for the panel’s delay in resolving the case from June 1989 until July 1990. The response addresses the events after Campbell’s third personal restraint petition was filed in the Washington Supreme Court. The response indicates that the panel vacated submission in February 1991 because if the Washington Supreme Court had granted the state petition, the appeal before the Ninth Circuit would have become moot. It further stated that the panel desired to avoid piecemeal appeals by awaiting the decision of the District Court on the third federal habeas petition. The response noted that the Ninth Circuit has formed a Death Penalty Task Force with the objective of eliminating successive habeas petitions and that the consolidation of the last two petitions is consistent with that objective.

The delay of over a year before the third personal restraint petition was filed in Washington state court remains unexplained and was in fact compounded by the events that followed. The orders by the Ninth Circuit to vacate submission of the case until completion of the state collateral proceeding and then to hold the case in abeyance pending filing and resolution of the third federal habeas proceeding in the District Court raise the very concerns regarding delay that were part of the rationale for this Court’s decisions in Rose v. Lundy, 455 U. S. 509 (1982), and McCleskey v. Zant, 499 U. S. 467 (1991). Adherence to those decisions, and their prompt enforcement by the district courts and courts of appeals, will obviate in many cases what the Court of Appeals here seems to perceive to be the necessity for accommodating multiple filings.

As to the Death Penalty Task Force, reports of joint committees of the bench and bar should be of urgent concern to all persons with the responsibility for the administration of justice in the Ninth Circuit, but the ordinary course of legal proceedings and the constant duty of all judges to discharge their duties with diligence and precision cannot be suspended to await its recommendations.

None of the reasons offered in the response dispels our concern that the State of Washington has sustained severe prejudice by the 2V2-year stay of execution. The stay has prevented Washington from exercising its sovereign power to enforce the criminal law, an interest we found of great weight in McCleskey when discussing the importance of finality in the context of federal habeas corpus proceedings. Id., at 491. Given the potential for prejudice to the State of Washington, the Ninth Circuit was under a duty to consider Campbell’s claim for relief without delay. Our case law suggests that expedited review of this second habeas petition would have been proper. Barefoot v. Estelle, 463 U. S. 880, 895 (1983) (“Even where it cannot be concluded that a [successive habeas] petition should be dismissed under Rule 9(b), it would be proper for the district court to expedite consideration of the petition”). The delay in this case demonstrates the necessity for the rule that we now make explicit. In a capital case the grant of a stay of execution directed to a State by a federal court imposes on that court the concomitant duty to take all steps necessary to ensure a prompt resolution of the matter, consistent with its duty to give full and fair consideration to all of the issues presented in the case.

Despite our continuing concerns, we decline to issue mandamus to the Court of Appeals at this time. While there are grounds to question both the necessity and the propriety of the Ninth Circuit’s order of August 7, 1991, Campbell v. Blodgett, 940 F. 2d 549, the State did not file any objection to it. The State should have lodged its objection with the Court of Appeals, citing the cases it now cites to us. True, the State had taken some action. It wrote twice in 1990 to inquire about the status of the case. And after the panel’s order vacating submission, the State objected and asked that the case be resubmitted for decision. The argument could be made that further requests for an expedited decision on the merits had little chance of success. But as a predicate for extraordinary relief, the State should have asked the Court of Appeals to vacate or modify its order of August 7, 1991, before coming here. This Court’s Rule 20.1 (“To justify the granting of any writ under that provision, it must be shown . . . that adequate relief cannot be obtained in any other form or from any other court”).

As we do not now issue a writ of mandamus, the Court of Appeals should determine how best to expedite the appeal, given the present posture of the case. Denial of the writ is without prejudice to the right of the State to again seek mandamus relief or to request any other extraordinary relief by motion or petition if unnecessary delays or unwarranted stays occur in the panel’s disposition of the matter. In view of the delay that has already occurred, any further postponements or extensions of time will be subject to a most rigorous scrutiny in this Court if the State of Washington files a further and meritorious petition for relief.

The motion of respondent Charles R. Campbell for leave to proceed in forma pauperis is granted. The petition for writ of mandamus is

Denied.

Justice Stevens,

with whom Justice Blackmun joins,

concurring in the judgment.

In recent years, the federal judiciary has done a magnificent job of handling a truly demanding appellate workload. On a national basis, the average time between notice of appeal and disposition is now less than 11 months. Although delays that are not fully justified occasionally occur, only in the most extraordinary circumstances would it be appropriate for this Court to issue a writ of mandamus to require a court of appeals to render its decision in a case under advisement.

In its petition for a writ of mandamus, the State criticizes the Court of Appeals’ failure to rule on the merits of Campbell’s second habeas corpus petition, which was submitted in June 1989. In their response, the judges on the panel provide a completely satisfactory explanation for their July 1990 decision to defer ruling on the merits of the petition— namely, their desire to avoid piecemeal litigation and to address all of Campbell’s claims in a single ruling. Because that explanation alone is sufficient to mandate denial of the State’s petition, there was no occasion for the panel to explain its pre-July 1990 delay.

The panel’s decision to defer its ruling on the second ha-beas petition pending disposition of the third personal restraint petition filed in the Washington Supreme Court in July 1990 showed proper respect for that court. Although this Court expresses its concern about the State’s interest in expediting its execution of Campbell, the Court is notably silent about the fact that the Washington Supreme Court considered the claims Campbell raised in his third personal restraint petition to be substantial. Although the state court, over the dissent of Justice Utter, denied Campbell’s petition, that court appointed counsel, scheduled briefing, heard oral argument, and addressed the merits of Campbell’s several claims. On these facts, the Ninth Circuit’s decision to delay its ruling on Campbell’s second habeas petition was sound, for it enables that court to consider the entire case at one time and will not delay the ultimate disposition of the matter.

Although I am sure the Court did not intend to send such a message, its opinion today may be read as an open invitation to petitions for mandamus from every State in which a federal court has stayed an execution. This is unfortunate because, as we noted in Kerr v. United States District Court for Northern District of Cal., 426 U. S. 394, 403 (1976), “particularly in an era of excessively crowded lower court dockets, it is in the interest of the fair and prompt administration of justice to discourage piecemeal litigation.”

Moreover, as we have so frequently recognized, mandamus is disfavored because it has “the unfortunate consequence of making the judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants [appearing] before him.” Ex parte Fahey, 332 U. S. 258, 260 (1947). Mandamus is an “extraordinary remed[y] reserved for really extraordinary causes,” ibid., precisely because of the great respect we have for our fellow jurists. This is not a situation in which the Ninth Circuit has unduly delayed decision of a case, but rather a situation in which that court has chosen to avoid repetitive and piecemeal litigation by consolidating two appeals. Respect for our fellow judges means providing them latitude in the handling of their burgeoning dockets, and granting due deference to those whose dockets are less discretionary than ours.

For the foregoing reasons, and because the State has failed to comply with this Court’s Rule 20.1, I believe that the State’s petition should have been denied summarily.

       “The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.” Kerr v. United States District Court for Northern District of Cal, 426 U. S. 394, 402 (1976); see also Will v. United States, 389 U. S. 90, 95 (1967); Ex parte Fahey, 332 U. S. 258, 259 (1947). Mandamus “has traditionally been used in the federal courts only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Will, 389 U. S., at 95 (internal quotation marks omitted). Accordingly, we have required that the party seeking issuance of the writ have no other adequate means to attain the desired relief, and that he demonstrate that his “right to issuance of the writ is ‘clear and indisputable.’ ” Bankers Life & Casualty Co. v. Holland, 346 U. S. 379, 384 (1953), quoting United States v. Duell, 172 U. S. 576, 582 (1899).

       On the facts of this case, the “severe prejudice” perceived by the Court is illusory. Even were we to direct the Ninth Circuit to decide Campbell’s second petition, the State would still be required to wait until that court ruled on his third petition. The State seems to recognize as much, for it asks that we both direct the Ninth Circuit to decide the second habeas petition and vacate the August 7 order which permitted filing of the third habeas petition. Pet. for Writ of Mandamus 9.


source: Caselaw Access Project

author: Justice O’Connor Justice Scalia,

license: Public Domain

text:
    SMITH v. BARRY et al.
    No. 90-7477.
    Argued December 2, 1991
    Decided January 14, 1992
    O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, Stevens, Kennedy, Souter, and Thomas, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, post, p. 250.

      Steven H. Goldblatt argued the cause and filed briefs for petitioner.

      David H. Bamberger argued the cause for respondents. With him on the brief were J. Joseph Curran, Jr., Attorney General of Maryland, Evelyn 0. Cannon, Richard Kasten-dieck, and Glenn Bell, Assistant Attorneys General, and Glen K. Allen.

   Justice O’Connor

delivered the opinion of the Court.

Rule 3 of the Federal Rules of Appellate Procedure conditions federal appellate jurisdiction on the filing of a timely notice of appeal. In this case, we hold that a document intended to serve as an appellate brief may qualify as the notice of appeal required by Rule 3.

I

While an inmate at the Maryland State Penitentiary, petitioner William Smith filed a pro se action against two prison administrators, seven corrections officers, two state psychologists, and named respondent Dr. Wayne Barry, a private physician. Suing under 42 U. S. C. § 1983, Smith alleged that he suffered from a psychogenic pain disorder and that the defendants’ refusal to provide him with a wheelchair constituted cruel and unusual punishment in violation of the Eighth Amendment. Smith further alleged that the officers used excessive force against him, also in violation of the Eighth Amendment.

The District Court dismissed Dr. Barry as a defendant on the ground that he did not act under color of state law when treating Smith and therefore was not subject to suit under § 1983. App. 5-6. The case proceeded to trial in 1988, following appointment of counsel. After Smith presented his case in chief, the District Court directed a verdict for the prison administrators and officers on Smith’s wheelchair claim, and for the administrators and three officers on his excessive force claim. The jury ultimately rejected Smith’s excessive force claim against the four remaining officers. However, it found that the staff psychologists were deliberately indifferent to Smith’s medical needs and awarded $15,000 in damages.

The two psychologists filed a timely motion for judgment notwithstanding the verdict (J. N. O. V.). Without consulting his attorney, and while the motion for J. N. O. V. was pending, Smith filed a notice of appeal. Smith’s trial counsel learned of the notice of appeal after the District Court denied the psychologists’ motion. In a letter dated April 21, 1988, he wrote Smith:

“I am certain from the circumstances that [the notice of appeal] is premature and thus void.
“... The Order denying the Motion for J. N. O. V. was entered April 13, 1988. This would give you up until May 13, 1988 before you must file an appeal. I would urge you to take by [sic] advice and not file an appeal, or at least seek a second legal opinion on the matter.” App. 17.

Smith’s notice of appeal was in fact invalid under Federal Rule of Appellate Procedure 4(a)(4), which provides that a notice of appeal filed before the disposition of a timely J. N. O. V. motion is without effect. Although the Fourth Circuit’s jurisdiction had not been properly invoked, its Clerk responded to the notice of appeal by sending all of the parties copies of the “informal brief” the court uses in pro se appeals and an order explaining the court’s procedures. The briefing forms asked the parties to answer six questions about their legal positions. Under its Rules, the Fourth Circuit reviews these responses and the record to determine whether appointment of counsel and/or oral argument are warranted. See CA4 Rule 34(b). Smith returned his informal brief to the Court of Appeals on May 4,1988, within the deadline for filing a notice of appeal.

After appointment of appellate counsel, the Fourth Circuit dismissed Smith’s appeal for want of jurisdiction. It held that Smith’s notice of appeal was untimely and that his informal brief was not “the ‘functional equivalent’ ” of the notice of appeal Rule 3 requires. Smith v. Galley, 919 F. 2d 893, 895 (1990) (quoting Torres v. Oakland Scavenger Co., 487 U. S. 312, 317 (1988)). The court reasoned that Smith filed the informal brief in response to a briefing order and that the Federal Rules envision that the notice of appeal and the appellate brief will be two separate documents. 919 F. 2d, at 895-896. In a footnote, the court listed specific omissions that might render Smith’s informal brief inadequate as a notice of appeal. Id., at 896, n. 7. Given its conclusion that a brief can never be considered a notice of appeal, however, the Fourth Circuit expressed no opinion on the significance of these omissions. Ibid.

We granted certiorari, 501 U. S. 1249 (1991), to decide whether an appellate brief may serve as the notice of appeal required by Rule 3. This question has divided the Courts of Appeals. Compare Smith v. Galley, supra; United States v. Cooper, 876 F. 2d 1192, 1196 (CA5 1989) (appellate brief cannot substitute for notice of appeal); and Jurgens v. McKasy, 905 F. 2d 382, 385, n. 4 (CA Fed. 1990) (same), with Frace v. Russell, 341 F. 2d 901, 903 (CA3) (treating brief as notice of appeal), cert. denied, 382 U. S. 863 (1965); Allah v. Superior Court of California, 871 F. 2d 887, 889-890 (CA9 1989) (same); and Finch v. Vernon, 845 F. 2d 256, 259-260 (CA11 1988) (same).

II

Federal Rule of Appellate Procedure 3(a) provides, in pertinent part, that “[a]n appeal permitted by law as of right from a district court to a court of appeals shall be taken by filing a notice of appeal with the clerk of the district court within the time allowed by Rule 4.” Rule 3(c) governs the content of notices of appeal: Notices “shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken.”

Courts will liberally construe the requirements of Rule 3. See Torres, supra, at 316; Foman v. Davis, 371 U. S. 178, 181-182 (1962). Thus, when papers are “technically at variance with the letter of [Rule 3], a court may nonetheless find that the litigant has complied with the rule if the litigant’s action is the functional equivalent of what the rule requires.” Torres, supra, at 316-317. This principle of liberal construction does not, however, excuse noncompliance with the Rule. Rule 3’s dictates are jurisdictional in nature, and their satisfaction is a prerequisite to appellate review. Torres, supra. Although courts should construe Rule 3 liberally when determining whether it has been complied with, noncompliance is fatal to an appeal.

In this case, the Court of Appeals recognized that it was required to determine whether Smith’s brief was the “functional equivalent” of the formal notice of appeal demanded by Rule 3, 919 F. 2d, at 895, but it erred in applying that standard. The court reasoned that because Smith filed his informal brief in response to a briefing order, “the document was not the result of Smith’s intent to initiate an appeal.” Id., at 895-896. This logic is dubious, since Smith received the briefing form as a result of filing a notice of appeal, albeit a premature one.

More importantly, the court should not have relied on Smith’s reasons for filing the brief. While a notice of appeal must specifically indicate the litigant’s intent to seek appellate review, see Foman, supra, at 181; Torres, 487 U. S., at 317-318, the purpose of this requirement is to ensure that the filing provides sufficient notice to other parties and the courts. See id., at 318. Thus, the notice afforded by a document, not the litigant's motivation in filing it, determines the document’s sufficiency as a notice of appeal. If a document filed within the time specified by Rule 4 gives the notice required by Rule 3, it is effective as a notice of appeal.

The Fourth Circuit’s other ground for dismissing Smith’s appeal is also insufficient. The Federal Rules do envision that the notice of appeal and the appellant’s brief will be two separate filings. Compare Fed. Rule App. Proc. 3(c) (content of notice of appeal) with Fed. Rule App. Proc. 28(a) (content of appellant’s brief). They do not preclude an appellate court from treating a filing styled as a brief as a notice of appeal, however, if the filing is timely under Rule 4 and conveys the information required by Rule 3(c). Such treatment is in fact appropriate under Torres and under Rule 3(c)’s provision that “[a]n appeal shall not be dismissed for informality of form or title of the notice of appeal.”

Having accepted a paper as the notice of appeal required by Rule 3, an appellate court might require timely filing of a second document meeting its standards for a brief or, if the paper meets those standards, take such other action as it deems appropriate to ensure that the filing sequence contemplated by the Rules is not disturbed. See, e. g., Fed. Rule App. Proc. 10(b) (time for ordering transcripts for inclusion in the record on appeal); Fed. Rule App. Proc. 31(a) (briefing schedule). Proper briefing is not, however, a jurisdictional requirement under the Federal Rules of Appellate Procedure. See Fed. Rule App. Proc. 3(a) (“Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal. . .”).

Respondents make the point that Smith filed his brief with the Court of Appeals, whereas Rule 3(a) directs litigants to file their notices of appeal with district courts. The Rules themselves answer this argument. Rule 4(a)(1) sets out a transmittal procedure to be followed when the notice of appeal is mistakenly filed with an appellate court, and provides that a misfiled notice “shall be deemed filed in the district court” on the day it was received by the court of appeals.

Finally, respondents argue that Smith’s brief is not an adequate notice of appeal because it lacks information required by Rule 3(c). Having held that an informal brief can never substitute for a formal notice of appeal, the Court of Appeals declined to reach this question. 919 F. 2d, at 896, n. 7. On remand, it should undertake the appropriate analysis. See, e. g., Foman, supra; Torres, supra.

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 Scalia,

concurring in the judgment.

I agree with the judgment because Federal Rule of Appellate Procedure 3(c) provides that “[a]n appeal shall not be dismissed for informality of form or title of the notice of appeal.” I do not rely on the theory that petitioner’s brief was the “ ‘functional equivalent’ ” of a notice of appeal under a “liberal construction” of Rule 3. Ante, at 248. “[W]e should seek to interpret the rules neither liberally nor stingily, but only, as best we can, according to their apparent intent.” Torres v. Oakland Scavenger Co., 487 U. S. 312, 319 (1988) (Scalia, J., concurring in judgment).


author: Justice Scalia Justice Blackmun,

text:
    COUNTY OF YAKIMA et al. v. CONFEDERATED TRIBES AND BANDS OF THE YAKIMA INDIAN NATION
    No. 90-408.
    Argued November 5, 1991
    Decided January 14, 1992

      Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Stevens, O’Connor, Kennedy, Souter, and Thomas, JJ., joined. Blackmun, J., filed an opinion concurring in part and dissenting in part, post, p. 270.

      Jeffrey C. Sullivan argued the cause for petitioners in No. 90-408 and respondents in No. 90-577. With him on the briefs was John V. Staffan.

      R. Wayne Bjur argued the cause for respondent in No. 90-408 and petitioner in No. 90-577. With him on the brief was Tim Weaver.

      Edwin S. Kneedler argued the cause for the United States as amicus curiae in support of respondent in No. 90-408 and petitioner in No. 90-577. With him on the brief were Solicitor General Starr, Acting Assistant Attorney General Hartman, Deputy Solicitor General Wallace, Peter R. Steenland, Jr., Robert L. Klarquist, and Edward J. Shawaker.

       Together with No. 90-577, Confederated Tribes and Bands of the Yakima Indian Nation v. County of Yakima et al., also on certiorari to the same court.

       Briefs of amici curiae were filed for the State of Montana et al. by Marc Racicot, Attorney General of Montana, Clay R. Smith, Solicitor, and by the Attorneys General for their respective States as follows: Gale A. Norton of Colorado, Hubert H. Humphrey III of Minnesota, Nicholas Spaeth of North Dakota, and Mark Barnett of South Dakota; for the State of Washington by Kenneth O. Eikenberry, Attorney General, Leland T. Johnson, Senior Assistant Attorney General, and Timothy R. Malone, Special Assistant Attorney General; for La Plata County et al. by Tom D. Tobin and Susan W. Pahlke; for the Mashantucket Pequot Tribe et al. by Melody L. McCoy, Yvonne Teresa Knight, Kim Jerome Gottschalk, Jeanette Wolfley, Reid P. Chambers, Jeanne S. Whiteing, and Robert S. Thompson III; for the National Association of Counties et al. by Richard Ruda and David J. Burman; and for the Washington State Association of Counties by Barnett Kalikow and Robert P. Dick.

   Justice Scalia

delivered the opinion of the Court.

The question presented by these consolidated cases is whether the County of Yakima may impose an ad valorem tax on so-called “fee-patented” land located within the Yakima Indian Reservation, and an excise tax on sales of such land.

I

A

In the late 19th century, the prevailing national policy of segregating lands for the exclusive use and control of the Indian tribes gave way to a policy of allotting those lands to tribe members individually. The objectives of allotment were simple and clear cut: to extinguish tribal sovereignty, erase reservation boundaries, and force the assimilation of Indians into the society at large. See, e. g., In re Heff, 197 U. S. 488, 499 (1905). Congress was selective at first, allotting lands under differing approaches on a tribe-by-tribe basis. See F. Cohen, Handbook of Federal Indian Law 129-130 (1982); Gates, Indian Allotments Preceding the Dawes Act, in The Frontier Challenge 141 (J. Clark ed. 1971). These early efforts were marked by failure, however. Because allotted land could be sold soon after it was received, see, e. g., Treaty with Wyandot Nation, Apr. 1, 1850, 9 Stat. 987, 992, many of the early allottees quickly lost their land through transactions that were unwise or even procured by fraud. See Cohen, supra, at 130. Even if sales were for fair value, Indian allottees divested of their land were deprived of an opportunity to acquire agricultural and other self-sustaining economic skills, thus compromising Congress’ purpose of assimilation.

Congress sought to solve these problems in the Indian General Allotment Act of 1887, also known as the Dawes Act, 24 Stat. 388, as amended, 25 U. S. C. §331 et seq., which empowered the President to allot most tribal lands nationwide without the consent of the Indian nations involved. The Dawes Act restricted immediate alienation or encumbrance by providing that each allotted parcel would be held by the United States in trust for a period of 25 years or longer; only then would a fee patent issue to the Indian allot-tee. 24 Stat. 389; see United States v. Mitchell, 445 U. S. 535, 543-544 (1980). Section 6 of the Act furthered Congress’ goal of assimilation by providing that “each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside.” 24 Stat. 390.

In In re Heff, supra, at 502-503, we held that this latter provision subjected Indian allottees to plenary state jurisdiction immediately upon issuance of a trust patent (and prior to the expiration of the 25-year trust period). Congress promptly altered that disposition in the Burke Act of 1906,34 Stat. 182, decreeing that state civil and criminal jurisdiction would lie “at the expiration of the trust period ... when the lands have been conveyed to the Indians by patent in fee.” A proviso, however, gave the President authority, when he found an allottee “competent and capable of managing his or her affairs,” to “issu[e] ... a patent in fee simple” prior to the expiration of the relevant trust period. Upon such a premature patenting, the proviso specified (significantly for present purposes) not that the patentee would be subject to state civil and criminal jurisdiction but that “all restrictions as to sale, incumbrance, or taxation of said land shall be removed.” Id., at 183.

The policy of allotment came to an abrupt end in 1934 with passage of the Indian Reorganization Act. See 48 Stat. 984, 25 U. S. C. § 461 et seq. Returning to the principles of tribal self-determination and self-governance which had characterized the pre-Dawes Act era, Congress halted further allotments and extended indefinitely the existing periods of trust applicable to already allotted (but not yet fee-patented) Indian lands. See §§461, 462. In addition, the Act provided for restoring unallotted surplus Indian lands to tribal ownership, see §463, and for acquiring, on behalf of the tribes, lands “within or without existing reservations.” § 465. Except by authorizing reacquisition of allotted lands in trust, however, Congress made no attempt to undo the dramatic effects of the allotment years on the ownership of former Indian lands. It neither imposed restraints on the ability of Indian allottees to alienate or encumber their fee-patented lands nor impaired the rights of those non-Indians who had acquired title to over two-thirds of the Indian lands allotted under the Dawes Act. See W. Washburn, Red Man’s Land/ White Man’s Law 145 (1971).

B

The Yakima Indian Reservation, which was established by treaty in 1855, see Treaty with Yakima Nation, 12 Stat. 951, covers approximately 1.3 million acres in southeastern Washington State. Eighty percent of the reservation’s land is held by the United States in trust for the benefit of the Tribe or its individual members; 20 percent is owned in fee by Indians and non-Indians as a result of patents distributed during the allotment era. See Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 415 (1989) (plurality opinion). Some of this fee land is owned by the Yakima Indian Nation itself.

The reservation is located almost entirely within the confines of petitioner/cross-respondent Yakima County. Pursuant to Washington law, Yakima County imposes an ad valo-rem levy on taxable real property within its jurisdiction and an excise tax on sales of such land. Wash. Rev. Code §§ 84.52.030,82.45.070 (1989). According to the county, these taxes have been levied on the Yakima Reservation’s fee lands and collected without incident for some time. In 1987, however, as Yakima County proceeded to foreclose on properties throughout the county for which ad valorem and excise taxes were past due, including a number of reservation parcels in which the Tribe or its members had an interest, respondent/ cross-petitioner Yakima Nation commenced this action for declaratory and injunctive relief, contending that federal law prohibited these taxes on fee-patented lands held by the Tribe or its members.

On stipulated facts, the District Court awarded summary judgment to the Tribe and entered an injunction prohibiting the imposition or collection of the taxes on such lands. On appeal, the Court of Appeals for the Ninth Circuit agreed that the excise tax was impermissible, but held that the ad valorem tax would be impermissible only if it would have a “ ‘demonstrably serious’ ” impact on the “ ‘political integrity, economic security, or the health and welfare of the tribe,’ ” and remanded to the District Court for that determination to be made. 903 F. 2d 1207,1218 (CA9 1990) (emphasis deleted) (quoting Brendale, supra, at 431). We granted certiorari. 500 U. S. 903 (1991).

II

The Court’s earliest cases addressing attempts by States to exercise dominion over the reservation lands of Indians proceeded from Chief Justice Marshall’s premise that the “several Indian nations [constitute] distinct political communities, having territorial boundaries, within which their authority is exclusive . . . .” Worcester v. Georgia, 6 Pet. 515, 556-557 (1832). Because Congress, pursuant to its constitutional authority both “[t]o regulate Commerce . . . with the Indian Tribes” and to make treaties, U. S. Const., Art. I, § 8, cl. 3; Art II, §2, cl. 2, had determined by law and treaty that “all intercourse with them [would] be carried on exclusively by the [Federal Government],” Worcester v. Georgia, supra, at 557, the Court concluded that within reservations state jurisdiction would generally not lie. The assertion of taxing authority was not excepted from this principle. E. g., The Kansas Indians, 5 Wall. 737, 755-757 (1867); The New York Indians, 5 Wall. 761, 771-772 (1867).

The “platonic notions of Indian sovereignty” that guided Chief Justice Marshall have, over time, lost their independent sway. See McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 172, and n. 8 (1973); Organized Village of Kake v. Egan, 369 U. S. 60, 71-73 (1962). Congress abolished treatymaking with the Indian nations in 1871, Rev. Stat. §2079, as amended, 25 U. S. C. §71, and has itself subjected the tribes to substantial bodies of state and federal law. This Court’s more recent cases have recognized the rights of States, absent a congressional prohibition, to exercise criminal (and, implicitly, civil) jurisdiction over non-Indians located on reservation lands. See, e. g., New York ex rel. Ray v. Martin, 326 U. S. 496 (1946); see also Cohen, Handbook of Federal Indian Law, at 352, and n. 39. We have even observed that state jurisdiction over the relations between reservation Indians and non-Indians may be permitted unless the application of state laws “would interfere with reservation self-government or impair a right granted or reserved by federal law.” Organized Village of Kake, supra, at 75. In the area of state taxation, however, Chief Justice Marshall’s observation that “the power to tax involves the power to destroy,” McCulloch v. Maryland, 4 Wheat. 316, 431 (1819), has counseled a more categorical approach: “[AJbsent cession of jurisdiction or other federal statutes permitting it,” we have held, a State is without power to tax reservation lands and reservation Indians. Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148 (1973). And our cases reveal a consistent practice of declining to find that Congress has authorized state taxation unless it has “made its intention to do so unmistakably clear.” Montana v. Blackfeet Tribe, 471 U. S. 759, 765 (1985); see also California v. Cabazon Band of Mission Indians, 480 U. S. 202, 215, n. 17 (1987).

Yakima County persuaded the Court of Appeals, and urges upon us, that express authority for taxation of fee-patented land is found in § 6 of the General Allotment Act, as amended. We have little doubt about the accuracy of that threshold assessment. Our decision in Goudy v. Meath, 203 U. S. 146, 149 (1906), without even mentioning the Burke Act proviso, held that state tax laws were “[ajmong the laws to which [Indian allottees] became subject” under §6 upon the expiration of the Dawes Act trust period. And we agree with the Court of Appeals that by specifically mentioning immunity from land taxation “as one of the restrictions that would be removed upon conveyance in fee,” Congress in the Burke Act proviso “manifest[ed] a clear intention to permit the state to tax” such Indian lands. 903 F. 2d, at 1211.

Neither the Yakima Nation nor its principal amicus, the United States, vigorously disputes this. Instead, they contend that § 6 of that Act — the Burke Act proviso included— is a dead letter, at least within the confines of an Indian reservation. The Tribe argues that, by terminating the allotment program and restoring tribal integrity through the Indian Reorganization Act of 1934, Congress impliedly repealed § 6’s jurisdictional grant and returned the law to its pre-General Allotment Act foundations. Congress’ subsequent actions, according to the Tribe, confirm this implication. In 1948, for instance, Congress defined “Indian country” to include all fee land within the boundaries of an existing reservation, whether or not held by an Indian, and pre-empted state criminal laws within “Indian country” insofar as offenses by and against Indians were concerned. See Act of June 25,1948,62 Stat. 757-758, as amended, 18 U. S. C. §§1151-1153; Seymour v. Superintendent of Washington State Penitentiary, 368 U. S. 351 (1962). And in 1953, Congress once again signaled its belief in the dormition of §6 by enacting Pub. L. 280, which authorized States to assume criminal and civil jurisdiction over Indians within Indian country in certain circumstances. See Act of Aug. 15, 1953, 67 Stat. 588.

Though generally in agreement with the Tribe, the United States takes a slightly different tack. It claims that the General Allotment Act removed only those barriers to state jurisdiction that existed at the time of its enactment, e. g., those associated with tribal sovereignty and the trust status of allotted land. The General Allotment Act did not remove — indeed, the argument goes, could not have removed — a jurisdictional bar arising after the Act’s passage. For just such an after-arising jurisdictional bar, the United States points to the same statutes on which the Tribe rests its position. In the United States’ view, these enactments must be construed to pre-empt the application “of state laws (especially state tax laws) to Indians and their property within a reservation.” Brief for United States as Amicus Curiae 14.

In support of their convergent arguments, the Yakima Nation and the United States cite this Court’s unanimous decision in Moe v. Confederated Salish and Kootenai Tribes, 425 U. S. 463 (1976), which they contend repudiates the continuing jurisdictional force of the General Allotment Act. In that case, the State of Montana sought to impose its cigarette sales and personal property taxes, as well as vendor-licensing fees, on Indian residents of a reservation located entirely within the State. It relied for jurisdiction upon § 6 of the General Allotment Act, but did not limit its claim of taxing authority to the reservation’s allottees or even to those activities taking place on allotted reservation fee land. Instead, the State made an “all or nothing” claim to reservation-wide jurisdiction (trust land included), arguing that any scheme of divided jurisdiction would be inequitable. Brief for Appellants in Moe, O. T. 1975, No. 74-1656, p. 17. We declined Montana’s invitation to ignore the plain language of §6, which “[b]y its terms [did] not reach Indians residing” or conducting business on trust lands. Moe, 425 U. S., at 478. The assertion of reservation-wide jurisdiction, we said, could not be sustained. But we went much further: In light of Congress’ repudiation in 1934 of the policies behind the General Allotment Act, we concluded that the Act could no longer be read to provide Montana plenary jurisdiction even over those Indians residing on reservation fee lands:

“The State has referred us to no decisional authority— and we know of none — giving the meaning for which it contends to § 6 of the General Allotment Act in the face of the '.any and complex intervening jurisdictional statutes directed at the reach of state law within reservation lands .... Congress by its more modern legislation has evinced a clear intent to eschew any such ‘checkerboard’ approach within an existing Indian reservation, and our cases have in turn followed Congress’ lead in this area.” Id., at 479.

Reasoning from Moe, the Yakima Nation and the United States argue that if § 6 no longer provides for plenary state jurisdiction over the owners of reservation fee lands, then it cannot support the exercise of the narrower jurisdiction asserted by Yakima County here. They concede, as they must, that in Moe the Court did not address the Burke Act proviso to § 6, which figures so prominently in Yakima County’s analysis. But real property taxes were not at issue in Moe, they argue, making the proviso irrelevant. And because a proviso can only operate within the reach of the principal provision it modifies, cf. United States v. Morrow, 266 U. S. 531, 534-535 (1925), neither the language of § 6 proper nor the proviso can be considered effective after Moe.

We think this view rests upon a misunderstanding of Moe and a misperception of the structure of the General Allotment Act. As to the former: The Tribe’s and the United States’ interpretation of our opinion in Moe reduces ultimately to the proposition that we held § 6 to have been repealed by implication. That is not supportable, however, since it is a “cardinal rule ... that repeals by implication are not favored,” Posadas v. National City Bank, 296 U. S. 497, 503 (1936), and since we made no mention of implied repeal in our opinion. Moe was premised, instead, on the implausibility, in light of Congress’ postallotment era legislation, of Montana’s construction of § 6 that would extend the State’s in personam jurisdiction beyond the section’s literal coverage (“each and every allottee”) to include subsequent Indian owners (through grant or devise) of the allotted parcels. This approach, we said, would create a “checkerboard” pattern in which an Indian’s personal law would depend upon his parcel ownership; it would contradict “the many and complex intervening jurisdictional statutes” dealing with States’ civil and criminal jurisdiction over reservation Indians; and it would produce almost surreal administrative problems, making the applicable law of civil relations depend not upon the locus of the transaction but upon the character of the reservation land owned by one or both parties. See Moe, supra, at 478-479.

Thus, even as to § 6 personal jurisdiction, Moe in no way contradicts Goudy v. Meath, which involved the personal liability for taxes of an Indian who not merely owned an allotted parcel, but was, as the language of § 6 requires, himself an allottee. See 203 U. S., at 147, 149. But (and now we come to the misperception concerning the structure of the General Allotment Act) Goudy did not rest exclusively, or even primarily, on the § 6 grant of personal jurisdiction over allottees to sustain the land taxes at issue. Instead, it was the alienability of the allotted lands — a consequence produced in these cases not by § 6 of the General Allotment Act, but by §5 — that the Court found of central significance. As the first basis of its decision, before reaching the “further” point of personal jurisdiction under § 6, id., at 149, the Goudy Court said that, although it was certainly possible for Congress to “grant the power of voluntary sale, while withholding the land from taxation or forced alienation,” such an intent would not be presumed unless it was “clearly manifested.” Ibid. For “it would seem strange to withdraw [the] protection [of the restriction on alienation] and permit the Indian to dispose of his lands as he pleases, while at the same time releasing it [sic] from taxation.” Ibid. Thus, when § 5 rendered the allotted lands alienable and en-cumberable, it also rendered them subject to assessment and forced sale for taxes.

The Burke Act proviso, enacted in 1906, made this implication of §5 explicit, and its nature more clear. As we have explained, the purpose of the Burke Act was to change the outcome of our decision in In re Heff, 197 U. S. 488 (1905), so that § 6’s general grant of civil and criminal jurisdiction over Indian allottees would not be effective until the 25-year trust period expired and patents were issued in fee. The proviso, however, enabled the Secretary of the Interior to issue fee patents to certain allottees before expiration of the trust period. Although such a fee patent would not subject its Indian owner to plenary state jurisdiction, fee ownership would free the land of “all restrictions as to sale, incum-brance, or taxation.” 25 U. S. C. § 349. In other words, the proviso reaffirmed for such “prematurely” patented land what § 5 of the General Allotment Act implied with respect to patented land generally: subjection to state real estate taxes. And when Congress, in 1934, while putting an end to further allotment of reservation land, see 25 U. S. C. §461, chose not to return allotted land to pre-General Allotment Act status, leaving it fully alienable by the allottees, their heirs, and assigns, see Brendale, 492 U. S., at 423 (plurality opinion); Hodel v. Irving, 481 U. S. 704, 708-709 (1987), it chose not to terminate state taxation upon those lands as well.

The Yakima Nation and the United States deplore what they consider the impracticable, Moe-condemned “checkerboard” effect produced by Yakima County’s assertion of jurisdiction over reservation fee-patented land. But because the jurisdiction is in rem rather than in personam, it is assuredly not Moe-condemned; and it is not impracticable either. The parcel-by-parcel determinations that the State’s tax assessor is required to make on the reservation do not differ significantly from those he must make off the reservation, to take account of immunities or exemptions enjoyed, for example, by federally owned, state-owned, and church-owned lands. We cannot resist observing, moreover, that the Tribe’s and the United States’ favored disposition also produces a “checkerboard,” and one that is less readily administered: They would allow state taxation of only those fee lands owned (from time to time) by nonmembers of the Tribe. See Brief for Yakima Nation 16, n. 8; Brief for United States as Amicus Curiae 14, n. 12. See also Brendale, supra, at 422-425 (plurality opinion) (affirming “checkerboard” with respect to zoning power over reservation fee land).

Turning away from the statutory texts altogether, the Yakima Nation argues that state jurisdiction over reservation fee land is manifestly inconsistent with the policies of Indian self-determination and self-governance that lay behind the Indian Reorganization Act and subsequent congressional enactments. This seems to us a great exaggeration. While the in personam jurisdiction over reservation Indians at issue in Moe would have been significantly disruptive of tribal self-government, the mere power to assess and collect a tax on certain real estate is not. In any case, these policy objections do not belong in this forum. If the Yakima Nation believes that the objectives of the Indian Reorganization Act are too much obstructed by the clearly retained remnant of an earlier policy, it must make that argument to Congress. Judges “are not at liberty to pick and choose among congressional enactments, and when two [or more] statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, 417 U. S. 535, 551 (1974).

III

Yakima County sought to impose two separate taxes with respect to reservation fee lands, an ad valorem tax and an excise tax on sales. We discuss each in turn, in light of the principles set forth above.

A

Liability for the ad valorem tax flows exclusively from ownership of realty on the annual date of assessment. See Timber Traders, Inc. v. Johnston, 87 Wash. 2d 42, 47, 548 P. 2d 1080, 1083 (1976). The tax, moreover, creates a burden on the property alone. See Wash. Rev. Code § 84.60.020 (1989) (“The taxes assessed upon real property . . . shall be a lien thereon from and including the first day of January in the year in which they are levied until the same are paid . . .”); Clizer v. Krauss, 57 Wash. 26, 30-31, 106 P. 145, 146-147 (1910). See also Timber Traders, Inc., supra; In re Electric City, Inc., 43 B. R. 336, 341 (Bkrtcy. Ct. WD Wash. 1984) (dictum). The Court of Appeals held, the Tribe does not dispute, and we agree, that this ad valorem tax constitutes “taxation of . . . land” within the meaning of the General Allotment Act and is therefore prima facie valid.

The Court of Appeals, however, derived from our decision three Terms ago in Brendale the conclusion that the Yakima Nation has a “protectible interest” against imposition of the tax on Tribe members upon demonstration of the evils described in that opinion, and remanded to the District Court for further findings in that regard. Neither of the parties supports this aspect of the Ninth Circuit’s ruling, believing that the law affords an unconditional answer to permissibility of the tax. We agree.

Brendale addressed a challenge to the Yakima Nation’s assertion of authority to zone reservation fee land owned by non-Indians. The concept of “protectible interest” to which Justice White’s opinion in the case referred, see 492 U. S., at 431, grew out of a long line of cases exploring the very narrow powers reserved to tribes over the conduct of non-Indians within their reservations. See Montana v. United States, 450 U. S. 544, 566 (1981) (citing cases). Even though a tribe’s “inherent sovereign powers ... do not extend to the activities of nonmembers,... [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 565-566 (emphasis added). Brendale and its reasoning are not applicable to the present cases, which involve not a proposed extension of a tribe’s inherent powers, but an asserted restriction of a State’s congressionally conferred powers. Moreover, as the Court observed recently in California v. Cabazon Band of Mission Indians, 480 U. S., at 215, n. 17, we have traditionally followed “a per se rule” “[i]n the special area of state taxation of Indian tribes and tribal members.” Though the rule has been most often applied to produce categorical prohibition of state taxation when there has been no “cession of jurisdiction or other federal [legislative permission],” Mescalero Apache Tribe, 411 U. S., at 148, we think it also applies to produce categorical allowance of state taxation when it has in fact been authorized by Congress. “Either Congress intended to pre-empt the state taxing authority or it did not. Balancing of interests is not the appropriate gauge for determining validity since it is that very balancing which we have reserved to Congress.” Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134, 177 (1980) (opinion of Rehn-QUIST, J.). If the Ninth Circuit’s Brendale test were the law, litigation would surely engulf the States’ annual assessment and taxation process, with the validity of each levy dependent upon a multiplicity of factors that vary from year to year, and from parcel to parcel. For reasons of practicality, as well as text, we adhere to our per se approach.

B

We think the excise tax on sales of fee land is another matter, as did the Court of Appeals. While the Burke Act proviso does not purport to describe the entire range of in rem jurisdiction States may exercise with respect to fee-patented reservation land, we think it does describe the entire range of jurisdiction to tax. And that description is “taxation of... land.” Yakima County seeks to expand this text by citing our statement in Squire v. Capoeman, 351 U. S. 1 (1956), to the effect that “[t]he literal language of the [Burke Act] proviso evinces a congressional intent to subject an Indian allotment to all taxes” after it has been patented in fee. Id., at 7-8 (emphasis added). This dictum was addressed, however, to the United States' assertion that the General Allotment Act barred only States and localities, and not the Federal Government, from levying taxes on Indian allotments during the trust period. “All taxes,” in the sense of federal as well as local, in no way expands the text beyond “taxation of. . . land.”

It does not exceed the bounds of permissible construction to interpret “taxation of land” as including taxation of the proceeds from sale of land; and it is even true that such a construction would be fully in accord with Goudy’s emphasis upon the consequences of alienability, which underlay the Burke Act proviso. That is surely not, however, the phrase's unambiguous meaning — as is shown by the Washington Supreme Court’s own observation that “a tax upon the sale of property is not a tax upon the subject matter of that sale.” Mahler v. Tremper, 40 Wash. 2d 405, 409, 243 P. 2d 627, 629 (1952). It is quite reasonable to say, in other words, that though the object of the sale here is land, that does not make land the object of the tax, and hence does not invoke the Burke Act proviso. When we are faced with these two possible constructions, our choice between them must be dictated by a principle deeply rooted in this Court’s Indian jurisprudence: “[Statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.” Montana v. Blackfeet Tribe, 471 U. S., at 766. See also McClanahan v. Arizona State Tax Comm’n, 411 U. S., at 174.

To render this a “taxation of land” in the narrow sense, it does not suffice that, under Washington law, the excise tax creates “a specific lien upon each piece of real property sold from the time of sale until the tax shall have been paid ....” Wash. Rev. Code § 82.45.070 (1989). A lien upon real estate to satisfy a tax does not convert the tax into a tax upon real estate — otherwise all sorts of state taxation of reservation-Indian activities could be validated (even the cigarette sales tax disallowed in Moe) by merely making the unpaid tax assessable against the taxpayer’s fee-patented real estate. Thus, we cannot even accept the county’s narrower contention that the excise tax lien is enforceable against reservation fee property conveyed by an Indian seller to a non-Indian buyer. The excise tax remains a tax upon the Indian’s activity of selling the land, and thus is void, whatever means may be devised for its collection. Cf., e. g., Washington v. Confederated Tribes of Colville Reservation, supra, at 154-159 (Indian proprietors may be compelled to precollect taxes whose incidence legally falls on non-Indians); Moe, 425 U. S., at 482 (same).

The short of the matter is that the General Allotment Act explicitly authorizes only “taxation of . . . land,” not “taxation with respect to land,” “taxation of transactions involving land,” or “taxation based on the value of land.” Because it is eminently reasonable to interpret that language as not including a tax upon the sale of real estate, our cases require us to apply that interpretation for the benefit of the Tribe. Accordingly, Yakima County’s excise tax on sales of land cannot be sustained.

* * *

We hold that the General Allotment Act permits Yakima County to impose an ad valorem tax on reservation land patented in fee pursuant to the Act, but does not allow the county to enforce its excise tax on sales of such land. The Yakima Nation contends it is not clear whether the parcels at issue in these cases were patented under the General Allotment Act, rather than under some other statutes in force prior to the Indian Reorganization Act. E. g., 25 U. S. C. §§ 320, 379,404, 405. We leave for resolution on remand that factual point, and the prior legal question whether it makes any difference.

The judgment is affirmed, and the cause is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Blackmun,

concurring in part and dissenting in part.

I have wandered the maze of Indian statutes and case law tracing back 100 years. Unlike the Court, however, I am unable to find an “unmistakably clear” intent of Congress to allow the States to tax Indian-owned fee-patented lands. Accordingly, while I concur with the majority’s conclusion that Yakima County may not impose excise taxes, I dissent from its conclusion that the county may impose ad valorem taxes on Indian-owned fee-patented lands.

The Court correctly sets forth the “ ‘unmistakably clear’ ” intent standard to be applied. Ante, at 258. But then, in my view, it seriously misapplies it, over the well-taken objections of the Yakima Nation and against the sound guidance of the United States as amicus curiae. At bottom, I believe the Court misapprehends the nature of federal pre-emption analysis and, as a result, dramatically devalues longstanding federal policies intended to preserve the integrity of our Nation’s Indian tribes. As I see it, the Court errs in three ways in arriving at its finding of “unmistakably clear” intent to allow taxation of Indian-owned fee-patented lands. First, it divines “unmistakably clear” intent from a proviso, which by its very terms applies only to land patented prematurely (and not to all patented land) and which is now orphaned, its antecedent principal clause no longer having any force of law. Second, acting on its own intuition that it would be “strange” for land to be alienable and encumberable yet not taxable, the Court infers “unmistakably clear” intent of Congress from an otherwise irrelevant statutory section that itself makes no mention of taxation of fee lands. Finally, misapprehending the nature of federal pre-emption of state laws taxing the Indians, the Court mistakenly assumes that it cannot give any effect to the many complex intervening statutes reflecting a complete turnabout in federal Indian policy— now aimed at preserving tribal integrity and the Indian land base — since enactment at the turn of the century of the statutory provisions upon which the Court relies. These current and now longstanding federal policies weigh decisively against the Court’s finding that Congress has intended the States to tax — and, as in these cases, to foreclose upon— Indian-held lands.

1. The majority concedes that the principal clause of §6 of the Dawes Act, which subjected allottees to the plenary civil and criminal jurisdiction of the States, can “no longer be read to provide . . . plenary jurisdiction even as to those Indians residing on reservation fee lands.” Ante, at 261. See also DeCoteau v. District County Court, 420 U. S. 425, 427, n. 2 (1975) (recognizing that statutory definition of “Indian country,” which includes all reservation land “notwithstanding the issuance of any patent,” 18 U. S. C. §1151, demarcates general boundary of civil jurisdiction of States); McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 177-178, and n. 17 (1973) (discussing more recent congressional enactments, i. e., Pub. L. 280 and the Indian Civil Rights Act of 1968, giving States civil and criminal jurisdiction over reservations but only upon consent of the affected tribe).

Rather than rely on the principal clause of § 6, the Court turns to a proviso added by the Burke Act, enacted in 1906. Ante, at 264. It acknowledges that the proviso was not even mentioned in Goudy v. Meath, 203 U. S. 146 (1906), a case upon which the majority relies. Ante, at 258-259. As an initial matter, the proviso’s attachment to an obsolete principal clause, if anything, must diminish its force as a measure of congressional intent. Moreover, by its terms, the proviso does not remove “restrictions as to . . . taxation” from all allotted land. It removes restrictions solely from allotted land that happened to be patented in fee “prematurely,” i. e., prior to the expiration of the 25-year trust period. To be sure, the proviso could be read to suggest that Congress possibly intended taxation of allotted lands other than those lands patented prematurely. But a possibility, or even a likelihood, does not meet this Court’s demanding standard of “unmistakably clear” intent.

2. And so the Court turns to § 5 of the Dawes Act for support. The majority claims that “the proviso reaffirmed for such ‘prematurely’ patented land what § 5 of the [Dawes Act] implied with respect to patented land generally: subjection to state real estate taxes.” Ante, at 264 (emphasis added). Because § 5 renders fee-patented lands alienable and encum-berable, the majority suggests that “ ‘it would seem strange to withdraw [the] protection [of the restriction on alienation] and permit the Indian to dispose of his lands as he pleases, while at the same time releasing it [sic] from taxation.’” Ante, at 263 (quoting Goudy v. Meath, 203 U. S., at 149).

The majority concedes that § 5 only “implied” this conclusion. Ante, at 263. In my view, a “mere implication” falls far short of the “unmistakably clear” intent standard. Cf. EEOC v. Arabian American Oil Co., 499 U. S. 244, 260 (1991) (Scalia, J., concurring in part and concurring in judgment) (“Given the presumption against extraterritoriality... and the requirement that the intent to overcome it be ‘clearly expressed,’ it is in my view not reasonable to give effect to mere implications from the statutory language as the EEOC has done”).

Nor can what this Court finds “strange” substitute for the “unmistakably clear” intent of Congress. To impute to Congress an intent to tax Indian land because the Court thinks it “strange” not to do so overlooks the countervailing presumption that “Congress has ... acted consistently upon the assumption that the States have no power to regulate the affairs of Indians on a reservation.” Williams v. Lee, 358 U. S. 217, 220 (1959). I need not pass upon the wisdom of the majority’s fiscal theory that if land is alienable and en-cumberable, it must be taxable. I pause only to comment that Congress has made its own agreement with this particular economic theory less than “unmistakably clear.” Cf. Lochner v. New York, 198 U. S. 45, 75 (1905) (Holmes, J., dissenting) (“This case is decided upon an economic theory which a large part of the country does not entertain”).

3. In any event, if “strangeness” is the benchmark of what Congress unmistakably intends, I find it stranger still to presume that Congress intends States to tax — and, as in these cases, foreclose upon — Indian-owned reservation lands. This presumption does not account for Congress’ “abrupt” termination of the assimilationist policies of the Dawes Act in favor of the Indian Reorganization Act’s now well-established “principles of tribal self-determination and self-governance.” See ante, at 255.

The Court announces that the Yakima’s “policy objections do not belong in this forum.” Ante, at 265. Yet, not to consider the policies of the Indian Reorganization Act is to forget that “we previously have construed the effect of legislation affecting reservation Indians in light of ‘intervening’ legislative enactments.” Bryan v. Itasca County, 426 U. S. 373, 386 (1976). See also Moe v. Confederated Salish and Kootenai Tribes, 425 U. S. 463, 479 (1976) (noting that State’s interpretation of §6 of the Dawes Act cannot survive “the many and complex intervening jurisdictional statutes” subsequently enacted). The majority appears to assume that these intervening enactments need not be given any effect here, because they do not rise to the level of a “repeal” of the Dawes and Burke Acts. Ante, at 262. I agree with the majority that implied repeals are not favored. But this is beside the point. A “repeal” — whether express or implied— need not be shown to preclude the States from taxing Indian lands.

As in all state-Indian jurisdiction cases, the relevant inquiry is whether Congress has pre-empted state law, not whether it has repealed its own law. See, e. g., California v. Cabazon Band of Mission Indians, 480 U. S. 202, 216 (1987); Bryan v. Itasca County, 426 U. S., at 376, n. 2. Under established principles of pre-emption, and notwithstanding the majority’s derisive characterizations, see ante, at 264-265, state laws may in fact give way to “mere” federal policies and interests. See English v. General Electric Co., 496 U. S. 72, 79 (1990) (state law is pre-empted to the extent that it “ ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress’ ”) (quoting Hines v. Davidowitz, 312 U. S. 52, 67 (1941)) (emphasis added)). Thus, in the Indian context, “ ‘[s]tate jurisdiction is pre-empted ... if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority.’” California v. Cabazon Band of Mission Indians, 480 U. S., at 216 (quoting New Mexico v. Mescalero Apache Tribe, 462 U. S. 324, 334 (1983)). See also White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 143-145 (1980) (recognizing “firm federal policy” of promoting tribal self-sufficiency and economic development and noting that the pre-emption inquiry “call[s] for a particularized inquiry into the nature of the state, federal, and tribal interests at stake”) (emphasis added).

Accordingly, this Court has made clear that “[t]he inquiry is to proceed in light of traditional notions of Indian sovereignty and the congressional goal of Indian self-government, including its ‘overriding goal’ of encouraging tribal self-sufficiency and economic development.” Cabazon, 480 U. S., at 216. In Cabazon, for example, the Court gave weight to recent policy statements by Congress and the President in support of Indian autonomy and self-determination, deeming them to be “particularly significant in this case.” Id., at 216, n. 19; see also id., at 217-218, and nn. 20-21.

I believe that if the majority were inclined to give federal policy interests any effect, its conclusion as to Congress’ “unmistakably clear” intent would doubtless be different today. The nature of federal policy interests emerges clearly from a review of the effects of the Indian land-allotment policies. During the allotment period from 1887 to 1934, Indian landholdings were reduced nationwide, through a combination of sales by allottees to non-Indians and Government sales of “surplus” unallotted lands, from about 138 million acres to 48 million acres. See F. Cohen, Handbook of Federal Indian Law 138 (1982). Of the 90 million acres lost, about 27 million acres passed from Indians to non-Indians, as a result of the alienability of the newly allotted land. Ibid. See also Readjustment of Indian Affairs, Hearings on H. R. 7902 before the House Committee on Indian Affairs, 73d Cong., 2d Sess., 17 (Comm. Print 1934) (Memorandum of John Collier, Commissioner of Indian Affairs) (Hearings).

For 12,000 years, the Yakima Indians have lived on their lands in eastern Washington. See H. Schuster, The Yakima 14 (1990). Because of the allotment policies, non-Indians today own more than a quarter million acres, more than half the land originally allotted to individual members of the Yak-imas. Id., at 83. “Allotment and the subsequent sale or lease of Indian lands accomplished what the 'genocide’ of epidemics, war, and bootlegged alcohol had not been able to do: a systematic 'ethnocide’ brought about by a loss of Indian identity with the loss of land.” H. Schuster, The Yakimas: A Critical Bibliography 70 (1982).

It is little wonder that, as Congress moved toward repudiating the allotment system in 1934, the Commissioner of Indian Affairs informed Congress:

“It is difficult to imagine any other system which with equal effectiveness would pauperize the Indian while impoverishing him, and sicken and kill his soul while pauperizing him, and cast him in so ruined a condition into the final status of a nonward dependent upon the States and counties.” Hearings, at 18.

I am mystified how this Court, sifting through the wreckage of the Dawes Act, finds any “clearly retained remnant,” ante, at 265, justifying further erosions — through tax foreclosure actions as in this litigation — to the landholdings of the Indian people.

The majority deems any concerns for tribal self-determination to be a “great exaggeration.” Ante, at 265. I myself, however, am “far from convinced that when a State imposes taxes upon reservation members without their consent, its action can be reconciled with tribal self-determination.” McClanahan v. Arizona State Tax Comm’n, 411 U. S., at 179. The majority concludes that, as a practical matter, “mere” property taxes are less disruptive of tribal integrity than cigarette sales taxes and certain personal property taxes (as on automobiles) that were at issue in Moe. Ante, at 264-265. I cannot agree that paying a few more pennies for cigarettes or a tax on some personal property is more a threat to tribal integrity and self-determination than foreclosing upon and seizing tribal lands.

Finally, the majority platitudinously suggests that the Yakima “must make [their policy] argument to Congress.” Ante, at 265. I am less confident than my colleagues that the 31 Yakima Indian families likely to be rendered landless and homeless by today’s decision are well positioned to lobby for change in the vast corridors of Congress.

       Section 6 provides in pertinent part:
      “At the expiration of the trust period and when the lands have been conveyed to the Indians by patent in fee,. .. then each and every allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside .... Provided, That the Secretary of the Interior may, in his discretion, and he is authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, incumbrame, or taxation of said land shall be removed’’ 25 U. S. C. § 349 (emphasis added).

       The Yakima Nation does, however, make a preliminary objection to the taxes on the ground that the Washington State Constitution permits land taxes to be imposed only on those Indians holding fee patents who have terminated their affiliations with the Tribe — which the Indian plaintiffs in these cases have not done. The provision at issue provides in pertinent part as follows:
      “That the people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries of this state, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States . . .; Provided, That nothing in this ordinance shall preclude the state from taxing as other lands are taxed any lands owned or held by any Indian who has severed his tribal relations, and has obtained from the United States or from any person a title thereto by patent or other grant, save and except such lands as have been or may be granted to any Indian or Indians under any act of congress containing a provision exempting the lands thus granted from taxation, which exemption shall continue so long and to such an extent as such act of congress may prescribe.” Wash. Const., Art. XXVI, Second (emphasis added).
      We agree with the Court of Appeals that, under this text, the Indian lands not covered by the quoted proviso are not exempted from taxation, but merely committed to “the absolute jurisdiction and control of [Congress].” If Congress has permitted taxation, the provision is not violated.

       Section 5 of the General Allotment Act provides in part:
      “[A)t the expiration of said [trust] period the United States will convey [the allotted lands] by patent to said Indian ... in fee, discharged of said trust and free of all charge or incumbrance whatsoever .... And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void . . ..” 25 U. S. C. § 348.
      The negative implication of the last quoted sentence, of course, is that a conveyance of allotted land is permitted once the patent issues.

       Since the proviso is nothing more than an acknowledgment (and clarification) of the operation of § 5 with respect to all fee-patented land, it is inconsequential that the trial record does not reflect “which (if any) of the parcels owned in fee by the Yakima Nation or individual members originally passed into fee status pursuant to the proviso, rather than at the expiration of the trust period . . . .” Brief for United States as Amicus Curiae 13, n. 10.

       The proviso states in pertinent part:
      “[T]he Secretary of the Interior may, in his discretion . . . whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, incum-brance, or taxation of said land shall be removed ....” 25 U. S. C. § 349.

        Goudy relied upon the principal clause of § 6. Even if this principal clause had any continuing vitality, whether Goudy would still be good law is questionable in light of the Court’s more recent decision in Bryan v. Itasca County, 426 U. S. 373 (1976), where it declined to find a clear intent of Congress to allow a State to tax Indians on the basis of a statute, § 4(a) of Pub. L. 280, that on its face conferred upon the State general civil jurisdictional powers over Indian country.

       This reading, which would imply the taxability of all fee-patented lands regardless of whether the owner was an original allottee, is in some tension with what the majority points out to be the “literal coverage (‘each and every allottee’)" of the principal general-jurisdiction-conferring clause. Ante, at 262.

       In Cabazon, the Court reiterated that “the federal tradition of Indian immunity from state taxation is very strong and that the state interest in taxation is correspondingly weak.” 480 U. S., at 215, n. 17.

       1 have previously observed:
      “Surely, in considering whether Congress intended tribes to enjoy civil jurisdiction,... this Court should direct its attention not to the intent of the Congress that passed the Dawes Act, but rather to the intent of the Congress that repudiated the Dawes Act, and established the Indian policies to which we are heir.” Brendale v. Confederated, Tribes and Bands of Yakima Nation, 492 U. S. 408, 464 (1989) (opinion concurring in judgment in part and dissenting in part).

       The Court concludes that Congress’ decision in the Indian Reorganization Act not to reimpose restraints on alienation of land already patented suggests that Congress also “chose not to terminate state taxation upon those lands as well.” Ante, at 264. In 1934, when the process of allotment was halted, 246,569 assignments had been made nationwide, totaling nearly 41 million acres (slightly less than the entire acreage of the State of Washington). Indian Heirship Land Survey, Memorandum of the Chairman to the Senate Committee on Interior and Insular Affairs, 86th Cong., 2d Sess., pt. I, p. 2 (Comm. Print 1960). In my judgment, Congress’ choice not to effect a taking of this magnitude does not reflect an intent to continue other policies contributing to the loss of Indian lands. If anything, Congress’ intent is to be gauged not by negative implication from what it failed to do, but from provisions in the Act that stop further allotment, that freeze in trust already allotted-but-not-yet-patented land, and that affirmatively authorize repurchases of Indian lands to rebuild the tribal land base. See generally 25 U. S. C. §§ 461-465.