concurring:
I agree with the majority that § 1301 may not be applied retrospectively to Means. I also concur in the majority’s excellent analysis of the ex post facto issue. Indeed, as the majority properly concludes, if the amendments to § 1301 were applied to Means, he would be unconstitutionally subjected to additional prosecution and heightened penalties that he was not subject to at the time the alleged crimes occurred. Because I agree with the majority’s holding that retrospective application of § 1301 to Means would violate the Ex Post Facto Clause, I concur in the result, and in most of the majority’s well-reasoned opinion. I conclude, however, that the district court was correct in holding that Congress clearly intended that § 1301 apply retrospectively. The language of the amendments and the legislative history evince Congress’ clear intent that § 1301 would apply to cases, such as Means’, in which the crimes occurred before the amendments’ enactment. Accordingly, I would hold that the statute is unconstitutional to the extent that it is applicable to offenses committed prior to its enactment.
The plain language of the 1990 amendments clearly states that Congress enacted § 1301 in order to recognize the prior existence of Indian tribes’ inherent criminal jurisdiction over non-member Indians. Section 1301(2) provides that the “powers of self-government” of Indian tribes “means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.” 25 U.S.C. § 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 Dictionary 1368 def'n 2 (4th ed. 1993) (“Existing in something as an essential, permanent, or characteristic attribute or quality; forming an element of something; intrinsic, essential.”). Thus, Congress’ choice of the word “inherent” demonstrates clearly that it viewed criminal jurisdiction over non-member Indians as an innate power of Indian tribes which was essential to their sovereignty, not as one it was bestowing on them. The authors of the amendments also added the phrase “hereby recognized and affirmed” to § 1301(2), further demonstrating that Congress enacted the section to affirm the existence of a power the tribes already had. See 2 The New Shorter Oxford English Dictionary 2503 defn 4 (defining “recognize” as follows: “Acknowledge the existence, legality, or validity of, esp. by formal approval or sanction”). The addition of this language directly refutes the contention that Congress intended to delegate new jurisdiction to the tribes. To the contrary, the language of the 1990 amendments clearly evinces Congress’ intent to “recognize” that, notwithstanding the Supreme Court’s binding determination to the contrary in Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990), the Indian tribes already had jurisdiction over non-member Indians.
The legislative history of § 1301 unambiguously confirms this conclusion. First, the House and Senate reports discussing the proposed statute state, without contradiction, that the amendments were a recognition of the inherent criminal jurisdiction of tribal courts over non-member Indians and that this jurisdiction had always existed. See S.Rep. No. 168,102nd Cong., 1st Sess. (1991) (stating that “the assumption in Congress has always been that tribal governments do have such jurisdiction, and Federal statutes reflect this view” and that the amendments were intended to “recognize and reaffirm the inherent authority of tribal governments to exercise criminal jurisdiction over all Indians”); H.R.Rep. No. 61, 102nd 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 was to “recognize and affirm the power of Indian tribes to exercise misdemeanor criminal jurisdiction over all Indians” and that the legislature “notes that tribes have retained the criminal jurisdiction over non-member Indians”); H.R.Conf.Rep. No. 261, 102nd Cong., 2nd Sess. 3 (1991) reprinted in 1991 U.S.C.C.A.N. 379 (stating that the “legislation clarifies and reaffirms the inherent authority of tribal governments to exercise criminal jurisdiction over all Indians on their reservations”); 137 *951Cong.Rec. H2988-02 (statement of Rep. Geo. Miller of California) (stating that “this bill recognizes an inherent tribal right which always existed. It is ... an affirmation that tribes retain all rights not expressly taken away. Since Congress never took this jurisdiction away, we assert that the jurisdiction exists and must be recognized”); and 137 Cong.Rec. H2988-02 (report on H.R. 972) (stating that the amendments seek “to assure Indian tribes of their jurisdiction over misdemeanor crimes committed on their lands by Indians who are not members of their tribe. The Committee is clarifying an inherent right which tribal governments have always held and was never questioned”).
Second, the legislative history states that proposed § 1301 was not intended to be a delegation of jurisdiction to Indian tribes. See H.R.Conf.Rep. No. 261 (stating that “the Committee of the Conference notes that ... this legislation is not a delegation of this jurisdiction”); H.R.Rep. No. 61 (stating that “this legislation is not a federal delegation of this jurisdiction but a clarification of the status of tribes as domestic dependent nations”); 137 Cong.Rec. H2988-02 (statement of Rep. Geo. Miller of California) (stating that “the proposed bill is not a delegation of authority but an affirmation that tribes retain all rights not expressly taken away”).
In light of the uncontradieted legislative pronouncements, I believe we are compelled to conclude that in adopting the amendments to § 1301, Congress did not intend to delegate jurisdiction to the tribes, but rather viewed the amendments as an affirmation of the jurisdiction that the tribes had always retained. See Mousseaux v. United States Comm’r of Indian Affairs, 806 F.Supp. 1433 (D.S.D.1992) (offering same interpretation of § 1301 and its legislative history) aff'd in part on other grounds and remanded in part, 28 F.3d 786 (8th Cir.1994); see also Nell Jessup Newton, Permanent Legislation to Correct Duro v. Reina, 17 Am. Indian L.Rev. 109, 118-20 (noting that the legislative history contained “strong language” that the legislation was not a delegation of new tribal authority but rather a reaffirmation of the power that tribes already had).
The plain language and legislative history of the amendments evince Congress’ clear intent that § 1301 serve as a confirmation of the tribes’ pre-existing jurisdiction, and not as a delegation of such jurisdiction. In short, Congress clearly intended the 1990 amendments to constitute a “clarification” of what it believed the law already was, and thus to be applicable to all cases, past, present and future. Accordingly, I would hold that the statute, on its face, applies retrospectively. Therefore, under the terms of § 1301, Means is subject to prosecution in the Northern Cheyenne Tribal Court for offenses committed prior to the adoption of the amendments.
As the majority correctly observes, however,- the application of § 1301 to Means would constitute a violation of his constitutional rights under the Ex Post Facto Clause. See Majority opinion at 9531-35 (“Imposing jurisdiction- retroactively 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 the majority’s thorough analysis of this point, I simply note that applying the 1990 amendments to Means, in conformance with the plain meaning of § 1301, would not only subject him to prosecution in an additional jurisdiction but also increase the maximum penalty he could receive by up to fifteen years and a $75,000 fine. To place Means at risk of enhanced penalties that he was not subject to at the time the crimes were committed would certainly constitute an ex post facto violation.
Because I conclude that the statute is' unconstitutional to the extent that it applies to offenses committed prior to its enactment, and because its application to Means and others whose offenses occurred prior to that time violates the Ex Post Facto Clause, I concur generally in the conclusion reached by the majority.1
. As Judge Reed’s opinion for the court points out, we do not consider the constitutionality of *952the statutory amendments in general. I agree, however, that if and when we examine that question in a case in which the amendments are applied prospectively, they should be treated as effectively delegating or granting authority, notwithstanding Congress’ effort to cast its actions differently. The alternative, that we strike the amendments in their entirety, is both undesirable and unnecessary. I have no doubt that Congress would have preferred to have a prospective statute rather than none at all. See Regan v. Time, Inc., 468 U.S. 641, 652, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984) ("A ruling of unconstitutionality frustrates the intent of the elected representatives of the people. Therefore, a court should refrain from invalidating more of the statute than is necessary.”).