Appeals from the United States District Courtfor the District of MontanaJack D. Shanstrom, District Judge, PresidingArgued and SubmittedApril 6, 1998--Seattle, WashingtonFiled August 27, 1998Before: Procter Hug, Jr., Chief Judge, Stephen Reinhardt,Circuit Judge, and Edward C. Reed, Jr., District Judge.*Opinion by Judge Reed;Concurrence by Judge ReinhardtSUMMARY
______________________COUNSEL Clarence Belue, Billings, Montana, for the plaintiff-appellant-cross-appellee.Steven A. Kelly, Lame Deer, Montana, for the defendants-appellees-cross-appellants.
_____________________________OPINION REED, District Judge:Appellant David Means, a member of the Sisseton-Wapatan (Sioux) Tribe of Indians, is currently free on bailpending criminal prosecution in the Tribal Court of the North-ern Cheyenne Indian Tribe. After being arrested and freed onbail, but prior to trial, Means sought habeas relief from thedistrict court on jurisdictional grounds. He argued that theTribal Court does not have criminal jurisdiction over him, asa nonmember Indian, for the crimes with which he is charged.The district court reviewed his petition, but denied relief. Thecourt's holding was based on a federal statute enacted after allof the acts with which Means is charged were allegedly com-mitted, and which purportedly "recognizes and affirm[s]" thecriminal jurisdiction of all tribal courts over all Indians,whether or not members of the same tribe.Further criminal proceedings in the Tribal Court have beenstayed by this court pending disposition of these appeals.Means appeals the district court's denial of his petition, whilethe Tribal Court and its Presiding Judge, Glenn Littlebird(collectively, "the Tribal Court" or Appellees), cross-appealthe issue of whether the district court properly entertainedMeans' pre-trial habeas petition, or whether "principles offederalism and comity" require that defendants actually beconvicted in tribal court before the federal courts intervene.I. FACTS AND PROCEDURAL HISTORYOn January 10, 1997, a complaint was filed in the NorthernCheyenne Tribal Court charging David Means with fifteencounts of aggravated sexual assault, under Section 7-4-7E ofthe Northern Cheyenne Tribal Code. Each count carries amaximum possible penalty of one year in jail and a $5000.00fine.1 All counts are alleged to have occurred between 1978and 1988, and the alleged victims are two of Means' nieces.The comparatively recent filing of the criminal complaint inthis case appears to stem from the fact that the victims haveonly recently "recovered" memories of the abuse, which isalleged to have happened when they were children.At all times relevant to this case (that is, from prior to 1978through the present), Means has lived within the NorthernCheyenne Indian Reservation in Montana. However, he is nota member of the Northern Cheyenne Tribe. He is an "Indian,"though, since he is a member of the Sisseton-Wapatan (Sioux)Tribe.2 Thus Means is a "non-member Indian" from theNorthern Cheyenne Tribal Court's point of view. As will bediscussed in detail below, jurisdiction over crimes committedin "Indian country"3 is divided among tribal, state, and federalcourts, depending on the status of the perpetrator and the vic-tim as either non-Indians or Indians--and potentially, at least,as either non-member Indians or tribal members. ThusMeans' status as a non-member Indian is crucial, but again,does not appear disputed.Means was arrested on the same day that the complaintagainst him was filed. Bail was set initially at $50,000 cash;reduced to $30,000 cash by the court upon Means' motion;further reduced to $5000 on appeal; increased back to $30,000on "full appeal"; and eventually reduced again to $10,000 bystipulation of the parties. Means has been free on bail sinceJanuary 31, 1997, but he is apparently prohibited from leavingthe reservation or the State of Montana, and from contactingchildren.Means moved to dismiss the action for lack of jurisdictionon April 9, 1997. The tribal court denied his motion, andMeans appealed. The Northern Cheyenne Court of Appealsapparently affirmed the tribal court's decision "by order . . .dated June 20, 1997." On July 2, 1997, Means filed a com-plaint in federal district court, which he amended on July 10to include a claim for habeas corpus relief under 25 U.S.C.S 1303. The district court treated the complaint as a petitionfor a writ of habeas corpus, which it denied on October 2,1997. Shortly thereafter, on October 9, 1997, Means timelyfiled the instant appeal. The Tribal Court and its presidingjudge, Glen Littlebird, then filed a notice of cross-appeal onOctober 23, 1997.II. DISCUSSION[1] Means' primary contention is that the Tribal Court doesnot have jurisdiction to try him for the crimes of which hestands accused. The Tribal Court, on the other hand, claimsthat its jurisdiction over these crimes is proper, based on the1990 Amendments to the Indian Civil Rights Act. Since thecrimes at issue are alleged to have occurred before 1990,however, the 1990 ICRA amendments will only serve as abasis for jurisdiction if they apply retroactively to conductcompleted prior to the amendments' passage. If the amend-ments do not apply retroactively, the Tribal Court will nothave jurisdiction to try Means for these crimes, and Means'petition must therefore be granted--since, as we discussbelow, there is no basis for the Tribal Court's assertion ofjurisdiction over Means other than the 1990 amendments tothe ICRA.A. Retroactivity of the 1990 Amendments to the Indian Civil Rights Act 1. Standard of ReviewA district court's decision on whether a statute may beapplied retroactively is a question of law reviewed de novo.Chenault v. United States Parcel Serv., 37 F.3d 535, 537 (9thCir. 1994). Likewise, a district court's denial of a petition fora writ of habeas corpus is reviewed de novo. Selam v. WarmSprings Tribal Correctional Facility, 134 F.3d 948, 951 (9thCir. 1998). 2. AnalysisIn determining whether a statute should be applied retroac-tively, the starting point must of necessity be the statute itself.Here, the statute at issue is the Indian Civil Rights Act, orICRA, codified at 25 U.S.C. SS 1301-1341. More specificallyat issue are the 1990 amendments to 25 U.S.C. S 1301. Thecurrent text of this section is set forth below, with languageadded in 1990 underlined: S 1301. Definitions For purposes of this subchapter, the term-- (1) "Indian tribe" means any tribe, band, or other group of Indians subject to the jurisdiction of the United States and recognized as possessing pow- ers of self-government; (2) "powers of self-government" means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians; (3) "Indian court" means any Indian tribal court or court of Indian offense; and (4) "Indian" means any person who would be subject to the jurisdiction of the United States as an Indian under section 1153 of Title 18 if that person were to commit an offense listed in that section in Indian country to which that section applies.25 U.S.C. S 1301, as amended by Pub. L. No. 101-511,S 8077 (1990) (emphasis added).While the new language appears merely to acknowledgethe existing state of the law, the 1990 amendments 4 wereadded by Congress in direct response to the Supreme Courtcase of Duro v. Reina,
495 U.S. 676
(1990). See, e.g., Impactof Supreme Court Ruling in Duro v. Reina: Hearing on S.962, S. 963 Before the Senate Select Comm. on Indian Affairs,Senate Hearing 158, pts. 1 & 2, 102 Cong., 1st Sess. (1991).Duro had held that an Indian tribe does not have criminaljurisdiction over Indians who are not members of that tribe.Duro,
495 U.S. at 679
. Thus the amendments to the ICRA didconstitute a change in the existing law. (i) The law prior to the 1990 amendmentsImmediately prior to the passage of the 1990 amendments,Duro was clearly the governing law. Prior to Duro, however,it was not clear whether Indian tribal courts could exercisecriminal jurisdiction over all Indians, or just over the mem-bers of their own tribes. On the other hand, it has been clearsince the late 1970s both that Indian tribes cannot exercisecriminal jurisdiction at all over "non-Indians, " Oliphant v.Suquamish Indian Tribe,
435 U.S. 191, 212
(1978), and thattribes can exercise criminal jurisdiction over their own mem-bers. United States v. Wheeler,
435 U.S. 313, 322
(1978). InDuro, the Supreme Court explicitly resolved the remainingissue of "non-member Indians," which it described as "at theintersection of these two precedents." Duro ,
495 U.S. at 684
.Duro involved a member of the Torres-Martinez Band ofMission Indians, who had been living on the Salt River IndianReservation with his girlfriend, a member of the Salt RiverPima-Maricopa Indian Community. While within Salt River'sboundaries, Duro allegedly shot and killed a member of theGila River Indian Tribe. Since both the defendant and the vic-tim were Indians, and since the crime had occurred withinIndian country, federal murder charges were brought underthe authority of the Major Crimes Act, 18 U.S.C.S 1153.However, when the federal charges were dropped, chargeswere brought in the Pima-Maricopa Indian Community Courtfor the "illegal firing of a weapon on the reservation." Duro,
495 U.S. at 681
.5After the tribal court refused to dismiss the charges onjurisdictional grounds, Duro filed a petition for a writ ofhabeas corpus in federal district court. The district courtgranted the writ, but a divided panel of this court reversed.Duro v. Reina, 851 F.2d 1136 (9th Cir. 1988), rev'd, 495 U.S.676 (1990). However, the Supreme Court agreed with the dis-trict court that the writ should have been granted. The Courtfelt that its prior cases, Oliphant and Wheeler, mandated theconclusion that Indian tribes may not exercise criminal juris-diction over non-member Indians any more than over non-Indians.Most of Duro is devoted to an examination of the historyof tribal sovereignty, the determining factor in both Oliphantand Wheeler. The Court held that tribes do not have "retainedtribal sovereignty" over non-members of the tribe, relyingheavily on its earlier decisions. In Oliphant , the Court hadexhaustively analyzed the history of the relations between theU.S. and various Indian tribes, and concluded that, while thetribes had originally been completely independent and self-governing sovereign political communities, their gradual sub-jugation to the federal government had limited many of thepowers the tribes once had. While an examination of treatiesand case law did not necessarily show that the power to trynon-Indians had ever been explicitly taken away, it did showthat such power was generally assumed (at least by whites)not to exist. In addition, the Court held that express termina-tion by Congress was not the only way tribal powers could beconstrained: "Indian tribes are prohibited from exercisingboth those powers of autonomous states that are expressly ter-minated by Congress and those powers `inconsistent withtheir status.' " Oliphant,
435 U.S. at 208
(quoting Oliphant v.Schlie, 544 F.2d 1007, 1009 (9th Cir. 1976)). Accordingly,the Court held that the "retained" authority of tribes did notinclude the ability to exercise criminal jurisdiction over non-Indians, since this would be inconsistent with the tribes' statusas dependent, quasi-sovereign entities.In Wheeler, on the other hand, the Court was faced with theexercise of tribal criminal jurisdiction over tribal members.Whether the tribes had the power to try their own memberswas apparently never questioned--the question was wherethat power originated. The defendant argued that the powerhad been delegated to the tribes by Congress, so that thetribes, in exercising that power, were acting as arms of thefederal government. Consequently, he argued, the fact that hehad previously been convicted in tribal court should preclude,under double jeopardy principles, his indictment by a federalgrand jury for the same offense. However, the Court held thatIndian tribes had not obtained criminal jurisdiction over theirown members by affirmative grant of Congress, but ratherretained that ability as part of their never-relinquished sover-eign power over their own internal affairs. Wheeler, 435 U.S.at 323-24. Therefore, no double jeopardy problem was pre-sented, since the two prosecutions were by separate sover-eigns.Thus in Duro, the Court faced the question of whether thetribes had also "retained" the inherent authority to exercisecriminal jurisdiction over non-member Indians, or whetherthat power, too, was "inconsistent with their status." TheCourt reasoned that its prior holdings made clear that non-member Indians were more like non-Indians in relation totribes other than their own--that is, both were "external" tothe tribe that wished to exert criminal jurisdiction over them.Duro,
495 U.S. at 695
-96. Therefore, it was clear that the"retained inherent authority" of the tribe to exercise powerover its internal affairs did not allow the tribe to exert crimi-nal jurisdiction over any non-members, whether Indian or not.Id. at 694. Since it is clear that Means is not a member of thetribe which is attempting to exert criminal jurisdiction overhim, then, under Duro, the tribe's attempt to exercise suchjurisdiction must fail.6 (ii) Passage of the 1990 AmendmentsWithin months of Duro, Congress passed Pub. L. No. 101-511, S 8077 of which amended the ICRA to "legislativelyoverrule" the Supreme Court's decision. While the legislativehistory of this section suggests that Congress did not intendto delegate such authority to the tribes, that is essentially theamendments' effect. While Congress is always free to amendlaws it believes the Supreme Court has misinterpreted, it can-not somehow erase the fact that the Court did interpret theprior law. In other words, once the Supreme Court has ruledthat the law is "X," Congress can come back and say, "no, thelaw is `Y,' " but it cannot say that the law was never "X" oralways "Y." The Court's decision is the correct statement ofwhat the law always was, even if no one knew it until theSupreme Court so held. See Rivers v. Roadway Express, Inc.,
511 U.S. 298
, 313 n.12 (1994) ("[W]hen this Court construesa statute, it is explaining its understanding of what the statutehas meant continuously since the date when it became law.. . . Thus, it is not accurate to say that the Court's decision . . .`changed' the law that previously prevailed . . . when this casewas filed. Rather, given the structure of our judicial system,[our] opinion finally decided what [the statute] had alwaysmeant . . . ."). Thus regardless of Congress' intent to declarethat tribes always had the inherent authority to try non-member Indians, that simply cannot be what the amendmentsaccomplished. The only way to treat the 1990 ICRA amend-ments is as an affirmative delegation of jurisdiction, whichmay or may not apply retroactively, but which did not existprior to 1990.7Of course, if Congress could somehow negate the SupremeCourt's ruling in Duro--that is, if Congress had the power topretend (successfully) that Duro was never decided, and makethe final, binding, decision on whether the tribes have alwayshad the retained inherent authority to exercise criminal juris-diction over non-member Indians--then the 1990 amend-ments would not constitute an affirmative delegation ofjurisdiction. Congress would not really have done anythingbut acknowledge the already extant state of affairs. Thus juris-diction would not have been imposed after the fact--on thecontrary, the Tribal Court would have had jurisdiction overMeans at the time he allegedly committed the crimes. Therewould have been no need for Congress to impose it retroac-tively (or prospectively, for that matter). In that case, therewould be no need for any further analysis, as there would beno retroactivity question, no ex post facto question, no equalprotection question, and no due process question. However, aswe have discussed, Congress does not have the power tonegate a Supreme Court decision. No matter how stronglyCongress intended for us to "view the amendments as nullify-ing Duro and reinstating the criminal jurisdiction of Indiantribes over non-member Indians so that it forms an unbrokenline, extending back into history," Mousseaux v. United StatesComm'r of Indian Affairs, 806 F. Supp. 1433, 1443 (D.S.D.1992), we cannot do so. The 1990 amendments must betreated as an affirmative delegation of power, and must conse-quently be examined to determine if that affirmative delega-tion should be applied retroactively or not. (iii) Whether the 1990 amendments should apply retroactivelyIt is clear that if Means' acts had occurred after the 1990amendments were enacted, the amendments would govern.(That is, of course, unless the amendments would be invalideven as prospectively applied, which, as discussed in note 7,supra, might well be the case. Again, however, we do notreach this issue.) Of course, Means' alleged acts occurredprior to 1990. Thus the amendments will only govern if theyare applied retroactively.[2] A determination of whether a statute should be appliedretroactively is generally made according to the criteria setforth in Landgraf v. USI Film Products,
511 U.S. 244
(1994).A major part of the Landgraf analysis turns on whether or notCongress intended for the statute at issue to apply retroac-tively. In holding that Congress did intend for the 1990Amendments to be applied retroactively, the court belowrelied heavily on Mousseaux, which contains a thorough anal-ysis of the legislative history of the amendments. While thereis some room for disagreement as to what Congress' intentreally was, and whether that intent is clearly reflected in thestatute, there is no need for us to resolve that question now.Regardless of whether Congress intends a statute to beapplied retroactively, we cannot so apply it if its retroactiveapplication would be unconstitutional. And since, as dis-cussed below, the retroactive application of the 1990 Amend-ments would clearly violate the Ex Post Facto Clause of theConstitution, we must hold that the 1990 Amendments to theICRA cannot and should not be retroactively applied.[3] Generally, there is an ex post facto violation when a lawpunishes as a crime an act which was not a crime when com-mitted, increases the punishment for a crime after its commis-sion, or deprives a defendant of a defense available at the timethe act was performed. Collins v. Youngblood,
497 U.S. 37
,52 (1990). Ex post facto laws are strictly forbidden. U.S.Const. art. I, S 9, cl. 3. Thus if retroactive application of the1990 amendments would violate the Ex Post Facto Clause, theamendments may not be applied to crimes committed beforetheir enactment.[4] Appellees argue that, since the 1990 amendments are"merely jurisdictional," they do not violate the Ex Post FactoClause. It is true that the Supreme Court has "regularlyapplied intervening statutes conferring or ousting jurisdiction,whether or not jurisdiction lay when the underlying conductoccurred or when the suit was filed," since "[a]pplication ofa new jurisdictional rule usually `takes away no substantiveright but simply changes the tribunal that is to hear thecase.' " Landgraf,
511 U.S. at 274
(quoting Hallowell v.Commons,
239 U.S. 506, 508
(1916)). However, this caseappears to be the exception to any presumption there might bein favor of applying "jurisdictional" statutes retroactively,which, to the extent such a presumption exists, seems to havebeen applied mainly in civil cases, not criminal ones. See, e.g.,Landgraf,
511 U.S. at 274
(citing various cases, all civil,which involved jurisdictional statutes).[5] Normally, jurisdictional statutes do "simply change[ ]the tribunal that is to hear the case." Id . Here, however, allow-ing the Tribal Court to exercise jurisdiction does not preventthe federal courts from exercising jurisdiction as well. Thereis no question that the federal courts could prosecute Meansfor what he is alleged to have done.8 Since each court couldimpose its own punishment, granting jurisdiction to the TribalCourt would effectively operate to increase the punishmentfor acts committed prior to passage of the statute. Prior to the1990 amendments, Means would only have been subject tofederal criminal jurisdiction, and his maximum punishmentwould have been equal to the maximum federal sentence forhis crimes in effect at the time he committed them. If the 1990amendments are applied retroactively, however, Means wouldbe subject to the maximum federal penalties for his acts plusthe maximum penalties the Tribal Court could impose forthose same acts, which would appear to be, potentially, anadditional fifteen years in jail and $75,000 in fines.9 Thus,regardless of the fact that Means' acts would have beenunlawful under federal law when he allegedly committedthem, the increased punishment he would face under the sub-sequently "affirmed" Tribal Court jurisdiction would seem topresent an ex post facto problem.[6] In addition to increasing the punishment, the retroactiveimposition of Tribal Court jurisdiction would also seem toviolate the other two strands of the Collins ex post facto test:i.e., punishing as a crime an act which was not a crime whencommitted, and depriving a defendant of a defense whichexisted when the act occurred. Collins,
497 U.S. at 52
. It istrue that the acts with which Means is charged were crimesunder the Tribal Code at the time they were allegedly commit-ted. However, at the time, the Tribal Court could not havetried or punished Means for those crimes, since it lacked juris-diction over him. Since what constitutes "a crime " is essen-tially what the sovereign defines as "a crime, " if the sovereignhas no power over an individual then it essentially lacks theability to define any of that individual's conduct as a crime.Thus while the conduct in question here might have been acrime, it was not a crime as to Means at the time it was alleg-edly committed. Imposing jurisdiction retroactively thereforemakes it a crime as to Means after the fact--exactly what isforbidden by the Ex Post Facto Clause.[7] To look at it yet another way, the retroactive applicationof the 1990 amendments would also deprive Means of adefense that was available at the time of his alleged crimes.The fact that the Tribal Court lacked criminal jurisdictionover Means would have been a complete defense to his prose-cution by the Tribe. The fact that the 1990 amendments ifapplied retroactively would deprive him of this defense afterthe fact is yet another reason why the amendments wouldpose a serious ex post facto problem if applied retroactively.Since applying the 1990 amendments retroactively wouldproduce an ex post facto problem, then we will not do so.Whether or not we assume that Congress intended to pass thisunconstitutional ex post facto law, the result is the same--the1990 amendments cannot be applied retroactively. Of course,as we have already mentioned, there might well be problemswith the 1990 amendments even as prospectively applied, butsuch problems must await another day for resolution.[8] Therefore, given the ex post facto problems that wouldarise were we to apply the 1990 amendments retroactively, wehold that the 1990 amendments to the ICRA should not applyretroactively to grant criminal jurisdiction to tribal courts overacts committed by non-member Indians prior to 1990. Conse-quently, the Northern Cheyenne Tribal Court lacks jurisdic-tion to try Means for the pre-1990 crimes with which he ischarged, and the district court should thus have grantedMeans' petition for a writ of habeas corpus.For the foregoing reasons, we reverse the district court'sdecision to apply the 1990 amendments retroactively, andremand to that court so Means' petition may be granted.B. The District Court's Exercise of Jurisdiction over Means' Pre-Trial Habeas PetitionIn addition to arguing that the district court was correct indenying Means' petition, the Appellees contend that the courtshould never have entertained the petition in the first place.Originally, Appellees contended that the district court shouldnot have considered Means' habeas petition because he wasnot "detained" as required by 25 U.S.C. S 1303. However,they have now conceded that this is not the case, and thatMeans is sufficiently "detained" by the fact that, as conditionsof his release on bail, he is forbidden from leaving the reser-vation and from contacting children.Currently, Appellees' principal contention is that the dis-trict court should not have entertained Means' petitionbecause he has not yet been tried. They acknowledge that pre-trial habeas petitions may be reviewed, but only if "specialcircumstances" are shown. Carden v. Montana , 626 F.2d 82,83 (9th Cir. 1980). They claim that the district court shouldhave required Means to show that such special circumstancesexisted before allowing him to proceed with his petition.While this particular issue does not appear to have beenraised before in the context of the habeas remedy peculiar tothe Indian Civil Rights Act, 25 U.S.C. S 1303, the generalreluctance to interfere with on-going state criminal trials cangenerally be said to extend to tribal courts. However, this isusually examined in the context of the requirement that tribalremedies be exhausted before the federal courts will getinvolved. The "principles of federalism and comity" that pre-clude most pre-trial grants of habeas relief in state cases arereflected here in the exhaustion requirement. See Iowa MutualIns. Co. v. LaPlante,
480 U.S. 9
, 15 & 16 n.8 (1987) (holding,in the context of a civil case, that "considerations of comitydirect that tribal remedies be exhausted before the question isaddressed by the District Court" and that "[e]xhaustion isrequired as a matter of comity, not as a jurisdictionalprerequisite"). Duro itself was a pre-trial habeas case, andeven with all the discussion over whether the writ should havebeen granted, it does not appear to have been disputed that thedistrict court's review of the petition was proper.[9] Our cases make clear that pre-trial relief was appropri-ate in these narrow circumstances. "[W]hen a tribal courtattempts to exercise criminal jurisdiction over a person not amember of a tribe, no requirement of exhaustion need beenforced." Selam v. Warm Springs Tribal CorrectionalFacility, 134 F.3d 948, 954 (9th Cir. 1998) (quoting Wetsit v.Stafne, 44 F.3d 823, 826 (9th Cir. 1995)). Further, to theextent that any exhaustion was required in this case, it wouldappear that Means has in fact met the requirement. He pre-sented his jurisdictional argument first to the Tribal Court,and then to the Northern Cheyenne Court of Appeals. Bothcourts denied his claim before he filed his petition with thedistrict court. Since the purpose of the exhaustion requirementis to promote "tribal self-government and self-determination"by allowing tribal courts to "have the first opportunity to eval-uate the factual and legal bases for the challenge to [their]jurisdiction," the requirement would appear to have been sat-isfied here. Iowa Mutual,
480 U.S. at 15
-16. The NorthernCheyenne courts appear to have had a full opportunity toexamine the jurisdictional question. Therefore, we affirm thedistrict court's exercise of jurisdiction over Means' habeaspetition.C. ConclusionWhile we affirm the district court's exercise of jurisdictionover Means' pre-trial habeas petition, we reverse the denial ofthat petition, and remand so that the petition may be granted.AFFIRMED in part, REVERSED in part, and RE-MANDED.
_____________________________REINHARDT, Circuit Judge, concurring:I agree with the majority that S 1301 may not be appliedretrospectively to Means. I also concur in the majority'sexcellent analysis of the ex post facto issue. Indeed, as themajority properly concludes, if the amendments toS 1301were applied to Means, he would be unconstitutionally sub-jected to additional prosecution and heightened penalties thathe was not subject to at the time the alleged crimes occurred.Because I agree with the majority's holding that retrospectiveapplication of S 1301 to Means would violate the Ex PostFacto Clause, I concur in the result, and in most of the majori-ty's well-reasoned opinion. I conclude, however, that the dis-trict court was correct in holding that Congress clearlyintended that S 1301 apply retrospectively. The language ofthe amendments and the legislative history evince Congress'clear intent that S 1301 would apply to cases, such as Means',in which the crimes occurred before the amendments' enact-ment. Accordingly, I would hold that the statute is unconstitu-tional to the extent that it is applicable to offenses committedprior to its enactment.The plain language of the 1990 amendments clearly statesthat Congress enacted S 1301 in order to recognize the priorexistence of Indian tribes' inherent criminal jurisdiction overnon-member Indians. Section 1301(2) provides that the"powers of self-government" of Indian tribes "means theinherent power of Indian tribes, hereby recognized andaffirmed, to exercise criminal jurisdiction over all Indians."25 U.S.C. S 1301(2). The dictionary defines the term"inherent" as a quality or characteristic that is innate, natural,or essential. See 1 The New Shorter Oxford English Dictio-nary 1368 def'n 2 (4th ed. 1993) ("Existing in something asan essential, permanent, or characteristic attribute or quality;forming an element of something; intrinsic, essential."). Thus,Congress' choice of the word "inherent" demonstrates clearlythat it viewed criminal jurisdiction over non-member Indiansas an innate power of Indian tribes which was essential totheir sovereignty, not as one it was bestowing on them. Theauthors of the amendments also added the phrase "hereby rec-ognized and affirmed" to S 1301(2), further demonstratingthat Congress enacted the section to affirm the existence of apower the tribes already had. See 2 The New Shorter OxfordEnglish Dictionary 2503 def'n 4 (defining "recognize" as fol-lows: "Acknowledge the existence, legality, or validity of,esp. by formal approval or sanction"). The addition of thislanguage directly refutes the contention that Congressintended to delegate new jurisdiction to the tribes. To the con-trary, the language of the 1990 amendments clearly evincesCongress' intent to "recognize" that, notwithstanding theSupreme Court's binding determination to the contrary inDuro v. Reina,
495 U.S. 676
(1990), the Indian tribes alreadyhad jurisdiction over non-member Indians.The legislative history of S 1301 unambiguously confirmsthis conclusion. First, the House and Senate reports discussingthe proposed statute state, without contradiction, that theamendments were a recognition of the inherent criminal juris-diction of tribal courts over non-member Indians and that thisjurisdiction had always existed. See S.Rep. No. 168, 102dCong., 1st Sess. (1991) (stating that "the assumption in Con-gress has always been that tribal governments do have suchjurisdiction, and Federal statutes reflect this view " and thatthe amendments were intended to "recognize and reaffirm theinherent authority of tribal governments to exercise criminaljurisdiction over all Indians"); H.R.Rep. No. 61, 102d Cong.,1st Sess. 1, 7 (1991) reprinted in 1991 U.S.C.C.A.N. 370,370, 376-77 (stating that the purpose of the amendments wasto "recognize and affirm the power of Indian tribes to exercisemisdemeanor criminal jurisdiction over all Indians " and thatthe legislature "notes that tribes have retained the criminaljurisdiction over non-member Indians"); H.R.Conf.Rep. No.261, 102d Cong., 2d Sess. 3 (1991) reprinted in 1991U.S.C.C.A.N. 379 (stating that the "legislation clarifies andreaffirms the inherent authority of tribal governments to exer-cise criminal jurisdiction over all Indians on theirreservations"); 137 Cong.Rec. H2988-02 (statement of Rep.Geo. Miller of California) (stating that "this bill recognizes aninherent tribal right which always existed. It is . . . an affirma-tion that tribes retain all rights not expressly taken away.Since Congress never took this jurisdiction away, we assertthat the jurisdiction exists and must be recognized"); and 137Cong.Rec. H2988-02 (report on H.R. 972) (stating that theamendments seek "to assure Indian tribes of their jurisdictionover misdemeanor crimes committed on their lands by Indianswho are not members of their tribe. The Committee is clarify-ing an inherent right which tribal governments have alwaysheld and was never questioned").Second, the legislative history states that proposedS 1301was not intended to be a delegation of jurisdiction to Indiantribes. See H.R.Conf.Rep. No. 261 (stating that "the Commit-tee of the Conference notes that . . . this legislation is not adelegation of this jurisdiction"); H.R.Rep. No. 61 (stating that"this legislation is not a federal delegation of this jurisdictionbut a clarification of the status of tribes as domestic dependentnations"); 137 Cong.Rec. H2988-02 (statement of Rep. Geo.Miller of California) (stating that the proposed bill is not adelegation of authority but an affirmation that tribes retain allrights not expressly taken away").In light of the uncontradicted legislative pronouncements,I believe we are compelled to conclude that in adopting theamendments to S 1301, Congress did not intend to delegatejurisdiction to the tribes, but rather viewed the tribes as anaffirmation of the jurisdiction that the tribes had alwaysretained. See Mousseaux v. United States Comm'r of IndianAffairs, 806 F.Supp. 1433 (D.S.D. 1992) (offering same inter-pretation of S 1301 and its legislative history) aff'd in part onother grounds and remanded in part, 28 F.3d 786 (8th Cir.1994); see also Nell Jessup Newton, Permanent Legislation toCorrect Duro v. Reina, 17 Am. Indian L. Rev. 109, 118-20(noting that the legislative history contained "stronglanguage" that the legislation was not a delegation of newtribal authority but rather a reaffirmation of the power thattribes already had).The plain language and legislative history of the amend-ments evince Congress' clear intent that S 1301 serve as aconfirmation of the tribes' pre-existing jurisdiction, and not asa delegation of such jurisdiction. In short, Congress clearlyintended the 1990 amendments to constitute a "clarification"of what it believed the law already was, and thus to be appli-cable to all cases, past, present and future. Accordingly, Iwould hold that the statute, on its face, applies retrospectively.Therefore, under the terms of S 1301, Means is subject toprosecution in the Northern Cheyenne Tribal Court foroffenses committed prior to the adoption of the amendments.As the majority correctly observes, however, the applica-tion of S 1301 to Means would constitute a violation of hisconstitutional rights under the Ex Post Facto Clause. SeeMajority opinion at 9531-35 ("Imposing jurisdiction retroac-tively therefore makes it a crime as to Means after the fact--exactly what is forbidden by the Ex Post Facto Clause." Id.at 9534.). Rather than repeat or attempt to improve upon themajority's thorough analysis of this point, I simply note thatapplying the 1990 amendments to Means, in conformancewith the plain meaning of S 1301, would not only subject himto prosecution in an additional jurisdiction but also increasethe maximum penalty he could receive by up to fifteen yearsand a $75,000 fine. To place Means at risk of enhanced penal-ties that he was not subject to at the time the crimes werecommitted would certainly constitute an ex post facto viola-tion.Because I conclude that the statute is unconstitutional to theextent that it applies to offenses committed prior to its enact-ment, and because its application to Means and others whoseoffenses occurred prior to that time violates the Ex Post FactoClause, I concur generally in the conclusion reached by themajority.1
___________________________FOOTNOTES *The Honorable Edward C. Reed, Jr., Senior District Judge for the Dis-trict of Nevada, sitting by designation.1 Under the Indian Civil Rights Act ("ICRA"), Indian tribal courts arecurrently forbidden from imposing a penalty of more than one year in jailplus a $5000.00 fine for "conviction for any one offense." 25 U.S.C.S 1302(7). Prior to 1986 the maximum penalty under the ICRA was sixmonths in jail plus a $500.00 fine. Pub. L. No. 90-284, Title II, S 202, 82Stat. 77 (1968), amended by Pub. L. 99-570, Title IV, S 4217, 100 Stat.3207-146 (1986). It is unclear how many of the fifteen counts with whichMeans is charged occurred before 1986. If all fifteen counts occurredbefore 1986, Means would face a maximum total penalty of seven and ahalf years in jail, plus a $7500 fine. If all fifteen counts occurred after1986, on the other hand, he would face a maximum penalty of fifteenyears and a $75,000 fine.2 This is Means' own description of his tribal membership. Nothing inthe record gives independent support to this statement. However, the par-ties all seem to agree that Means is an Indian, but is not a member of theNorthern Cheyenne Tribe. As the Tribal Court would unquestionably havecriminal jurisdiction over Means if he were a member of the NorthernCheyenne Tribe, United States v. Wheeler,
435 U.S. 313, 322
(1978), theTribal Court would surely have attempted to show that Means was a mem-ber of the Northern Cheyenne Tribe if that were true. Likewise, as tribalcourts clearly do not have criminal jurisdiction over non-Indians, Oliphantv. Suquamish Indian Tribe,
435 U.S. 191, 212
(1978), we can assume thatMeans would have contested his status as an Indian if that were possible.3 "Indian country" is defined in 18 U.S.C. S 1151, and includes primarilyall land within the boundaries of Indian reservations.4 The original 1990 amendments toS 1301 contained a sunset provisionwhich caused the changes to lapse after one year. However, the amend-ments were re-enacted in the same form after a gap of only a few days,Pub. L. No. 102-137, 105 Stat. 646 (1991), and still represent the currentlaw. Thus we will continue to refer to the changes as the 1990 amend-ments.5 As discussed above, the ICRA severely limits the punishment a tribecan impose. At the time, the limit was six months in jail and a $500 fine.Effectively, this limits a tribe's ability to prosecute to misdemeanors--although, as here, tribal authorities will often seek to prosecute lesserincluded offenses of serious crimes, because otherwise the offenderswould receive no punishment at all. See L. Scott Gould, The Congressio-nal Response to Duro v. Reina: Compromising Sovereignty and theConstitution, 28 U.C. Davis L. Rev. 53, 155 n.400 (1994) (noting that "thetribes prosecuted offenses such as [murder] as misdemeanors for the sim-ple reason that the crimes would otherwise go unpunished").6 Of course, it is also true that Means' alleged crimes took place priorto the Duro decision. However, no one questions that Duro should applyretroactively. See Harper v. Virginia Dept. of Taxation,
509 U.S. 86
, 97(1993) ("When this Court applies a rule of federal law to the parties beforeit, that rule is the controlling interpretation of federal law and must begiven full retroactive effect in all cases still open on direct review and asto all events, regardless of whether such events predate or postdate ourannouncement of the rule."). Thus it is clear that, unless the ICRA amend-ments apply retroactively, the Tribal Court's jurisdiction over Means mustbe determined in accordance with Duro.7 It is quite likely that Congress chose the "recognized and affirmed"language in an effort to avoid potential Constitutional problems that mightbe implicated by an affirmative delegation of jurisdiction, even when onlyapplied prospectively. Duro makes it clear that non-Indians and non-member Indians are similarly situated in regard to tribal courts' exerciseof criminal jurisdiction, Duro,
495 U.S. at 696
, so any grant of jurisdictionto tribes by Congress over non-member Indians but not over non-Indiansmight well present a serious equal protection problem. In addition, Duroalso hints that any affirmative grant of criminal jurisdiction over non-members--whether Indian, non-Indian, or both--by Congress to Indiantribal courts, which are not subject to the Bill of Rights or other constitu-tional restraints, would be a violation of the Due Process Clause. Duro at693 (stating that "[o]ur cases suggest constitutional limitations even on theability of Congress to subject American citizens to criminal proceedingsbefore a tribunal that does not provide constitutional protections as a mat-ter of right"). However, since we find that the amendments should not beretroactively applied to Means' alleged crimes, we do not reach the ques-tion of whether the amendments are unconstitutional even when prospec-tively applied.8 Federal criminal jurisdiction is imposed by the Major Crimes Act, 18U.S.C. S 1153, which provides that "[a]ny Indian who commits against theperson or property of another Indian or other person any of [certain speci-fied serious crimes] within the Indian country, shall be subject to the samelaws and penalties as all other persons committing any of the aboveoffenses, within the exclusive jurisdiction of the United States." 18 U.S.C.S 1153.9 But see note 1, supra , discussing fact that for crimes committed priorto 1986 Indian tribes could only impose up to six months in jail plus a$500 fine for each count of conviction. Still, even if all crimes at issuewere committed prior to 1986, Means would be subject to an additionalseven and a half years in jail and $7500 in fines.1 As Judge Reed's opinion for the court points out, we do not considerthe constitutionality of the statutory amendments in general. I agree, how-ever, that if and when we examine that question in a case in which theamendments are applied prospectively, they should be treated as effec-tively delegating or granting authority, notwithstanding Congress' effort tocast its actions differently. The alternative, that we strike the amendmentsin their entirety, is both undesirable and unnecessary. I have no doubt thatCongress would have preferred to have a prospective statute rather thannone at all. See Regan v. Time, Inc.,
468 U.S. 641, 652
(1984) ("A rulingof unconstitutionality frustrates the intent of the elected representatives ofthe people. Therefore, a court should refrain from invalidating more of thestatute than is necessary."). the end