United States v. Michael L. Enas

PREGERSON, Circuit Judge,

with whom Judges TROTT, TASHIMA, and WILLIAM A. FLETCHER, Circuit Judges, join, concurring:

As Judge McKeowns opinion states, the outcome of this case depends on whether the tribal court’s criminal jurisdiction over Michael Enas, a non-member Indian, rests on inherent tribal sovereignty. If the White Mountain Apache Tribe (“the Tribe”) prosecuted Enas pursuant to its inherent sovereign criminal jurisdiction, the dual sovereignty exception would permit the federal government to also prosecute Enas without offending the Double *676Jeopardy Clause. If, however, the Tribe exercised federal power when it prosecuted Enas, the subsequent federal prosecution is barred by the Double Jeopardy Clause because both prosecutions would stem from the same sovereign entity.

The district court held that the Tribe’s power to prosecute Enas, a non-member Indian, is derived from the federal government and, therefore, that the Double Jeopardy Clause bars the second prosecution. We disagree with the district court’s conclusion and would reverse. We write separately, however, because we do not think it is necessary to engage in a separation of powers analysis to reach this conclusion.

I.

The History of the Dual Sovereignty Exception as It Applies to Successive Tribal and Federal Prosecutions

The history of the dual sovereignty exception as it applies to successive tribal and federal prosecutions has been less than straightforward for two reasons. First, the prosecutorial power of the tribes has changed over time. Second, the extent of the tribes’ prosecutorial power depends in large part on whether the individual being prosecuted is a member of the prosecuting tribe (a “member Indian”),1 an Indian who is a member of a tribe other than the prosecuting tribe (a “non-member Indian”), or a non-Tndian. A brief review of the relevant case law illustrates this point.

In Oliphant v. The Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), the Supreme Court held that Indian tribal courts do not have inherent criminal jurisdiction over non-Indians. 435 U.S. at 212, 98 S.Ct. 1011. The Court reasoned that to permit the tribes to exercise such jurisdiction in the absence of congressional authorization would be inconsistent with the dependent status of the tribes.2 Later that Term, in United States v. Wheeler, the Supreme Court held that the tribes retained inherent sovereign authority to prosecute member Indians for offenses committed on the reservation. 435 U.S. at 323-24, 98 S.Ct. 1079. The Wheeler Court explained: “[T]he sovereign power to punish tribal offenders has never been given up ... and [the] tribal exercise of that power today is therefore the continued exercise of retained tribal sovereignty.” Id. Because the Wheeler Court found that the tribes have inherent criminal jurisdiction over member Indians, the Court held that successive tribal and federal prosecutions of member Indians do not offend the Double Jeopardy Clause. See id.

The Supreme Court did not consider the issue whether the tribes retain inherent sovereignty to prosecute non-member Indians until Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990). Albert Duro, an enrolled member of the Torres-Martinez Band of Cahuilla Mission Indian Tribe, allegedly shot and killed a member of the Gila River Indian Tribe on a Salt River Pima-Maricopa Indian Reservation. Duro, 495 U.S. at 679-81, 110 S.Ct. 2053. Following the shooting, Duro was placed in the custody of Pima-Marico-pa officers and was charged with the illegal firing of a weapon in Pima-Maricopa *677Indian Community Court. Id. at 681, 110 S.Ct. 2053.

Duro filed a motion to dismiss the prosecution for lack of jurisdiction, which was denied by the tribal court. Id. Duro then challenged the jurisdiction of the Prima-Maricopa Community Court by filing a petition for writ of habeas corpus in United States District Court. Id. at 681-82, 110 S.Ct. 2053. The district court granted the writ, but a divided panel of the Ninth Circuit reversed. Id.

The Supreme Court granted certiorari and ultimately held that “the sovereignty retained by the tribes in their dependent status within our scheme of government [does not include] the power of criminal jurisdiction over [non-member Indians].” Id. at 679, 684, 110 S.Ct. 2053. In so holding, the Court noted that the Indian tribes are “limited sovereigns [that are] necessarily subject to the overriding authority of the United States.” Id. at 685, 110 S.Ct. 2053. Although the Court recognized that the tribes never explicitly surrendered their criminal jurisdiction over non-member Indians, the Court found that the exercise of such jurisdiction, in the absence of congressional authorization, would be inconsistent with the dependent status of the tribes. Id. at 686-96, 110 S.Ct. 2053. Thus, the Court in Duro held that the Pima-Maricopa Indian Community Court lacked criminal jurisdiction over Duro, a non-member Indian. Id. at 698, 110 S.Ct. 2053.

II.

The 1990 Indian Civil Rights Act Amendments and the Impact of the Amendments in Light of Duro

Congress reacted to the Duro decision by passing the 1990 amendments to the Indian Civil Rights Act (“ICRA”) (hereinafter referred to as the “1990 amendments” or the “1990 ICRA amendments”). The ICRA originally defined the Indian tribes’ “powers of self-government” as “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.” Pub.L. 90-284, tit. II, § 201, 82 Stat. 77 (Apr. 11, 1986), codified at 25 U.S.C. § 1301(2) (1982). In the wake of Duro, Congress expanded the definition to state clearly that the tribes’ “powers of self government” also include “the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.” 25 U.S.C. § 1301(2) (emphasis added). What is more, the legislative record unmistakably characterizes the amendments as a recognition and affir-mance of the tribes’ historical and inherent sovereign authority over non-member Indians. See United States v. Weaselhead, 36 F.Supp.2d 908, 914-15 (D.Neb.1997), affd by an equally divided court, 165 F.3d 1209 (8th Cir.1999) (en banc); see also Means v. N. Cheyenne Tribal Court, 154 F.3d 941, 943-44, 946-47 (9th Cir.1998).3

*678We first addressed the impact of these amendments in Means. 154 F.3d 941 (9th Cir.1998). An enrolled member of one tribe, Means was criminally prosecuted by another tribe for conduct he allegedly engaged in between 1978 and 1988, before the passage of the 1990 amendments to the ICRA. Id. at 942. Prior to trial, Means challenged the jurisdiction of the prosecuting tribe by filing a petition for a writ of habeas corpus in federal court. Id.

In response to the habeas petition, the prosecuting tribe argued that it properly asserted criminal jurisdiction over Means pursuant to the 1990 amendments to the ICRA. See id. at 943. Thus, the central issue before us in Means was whether the 1990 amendments to the ICRA applied retroactively. Id. If the amendments applied retroactively, then they would provide a basis for the tribal court to exercise jurisdiction over Means. Id. But if the amendments only applied prospectively, then under Duro, the tribal court lacked jurisdiction. Id.

We held in Means that although Congress may have intended the 1990 amendments to overrule legislatively the Supreme Court’s decision in Duro and apply retroactively, to apply the amendments retroactively would violate the Ex Post Facto Clause by subjecting Means to tribal punishment as well as federal punishment, when at the time of his alleged crime, he was only subject to federal punishment. Id. at 946-48. Therefore, Means held that the 1990 ICRA amendments do not apply retroactively and that, under Duro, Means was not subject to the criminal jurisdiction of another tribe. See id. at 948-49.

Although the double jeopardy question at issue in the instant case was not before us in Means, the retroactivity issue presented in Means also “demanded an examination of the nature of retained tribaí power.” Duro, 495 U.S. at 685, 110 S.Ct. 2053. Specifically, Means required us to consider: (1) whether the 1990 amendments announced a change in the common law regarding the inherent jurisdiction of the tribes; and (2) whether Congress can enact legislation to effectively undo a prior decision of the Supreme Court. In Means we stated that:

While the legislative history of [the 1990 amendments] suggests that Congress did not intend to delegate such authority to the tribes [i.e. the authority to prosecute non-member Indians], that is essentially the amendment’s effect. While Congress is always free to amend laws it believes the Supreme Court has misinterpreted, it cannot somehow erase the fact that the Court did interpret the prior law. In other words, once the Supreme Court has ruled that the law is “X,” Congress can come back and say, “no, the law is %’ ” but it cannot say that the law was never “X” or always “Y.” ... Thus, regardless of the Congress’ intent to declare that the tribes always had the inherent authority to try non-member Indians, that simply cannot be what the amendments accomplished .... Congress does not have the power to negate a Supreme Court decision. No matter how strongly Congress intended for us to “view the amendments as nullifying Duro and re*679instating the criminal jurisdiction of Indian tribes over non-member Indians so that it forms an unbroken line, extending back in history,” we cannot do so.

Means, 154 F.3d at 946-47 (quoting Mous-seaux v. United States Comm’r of Indian Affairs, 806 F.Supp. 1433, 1443 (D.S.D. 1992)). On the basis of this reasoning, Means was constrained to hold that “[t]he only way to treat the 1990 ICRA amendments is as an affirmative delegation of jurisdiction ... which did not exist prior to 1990.” Id. at 946.

Means, however, misinterpreted the effect of the 1990 ICRA amendments on the sovereign power of the tribes. In Means we held, on the basis of Duro, that Congress did not have the power to decide whether “the tribes always had the inherent authority to try non-member Indians.” Means, 154 F.3d at 946. But Duro did not hold that the tribes never had, and may never have, the inherent authority to prosecute non-member Indians. Rather, Duro simply held that, at the time of the Duro decision and absent an act of Congress, the tribes lacked the inherent sovereign authority to prosecute non-member Indians because such authority would be inconsistent with the dependent status of the tribes. See Duro, 495 U.S. at 686, 110 S.Ct. 2053. The rule in Duro — 'that the tribes lacked inherent authority to exercise criminal jurisdiction over non-member Indians — continued to be the law until Congress enacted the 1990 amendments. 25 U.S.C. § 1301; see also Strate v. A-1 Contractors, 520 U.S. 438, 446 n. 5, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997) (“In Duro v. Reina, we held that Indian tribes also lack criminal jurisdiction over nonmember Indians. Shortly after our decision in Duro, Congress provided for tribal criminal jurisdiction over nonmember Indians.”). With the 1990 amendments, Congress exercised its plenary power under the Indian Commerce Clause to restore prospectively the inherent authority of Indian tribes “over all Indians,” including non-members. 25 U.S.C. § 1301(2); see also Strate, 520 U.S. at 446 n. 5, 117 S.Ct. 1404; Duro, 495 U.S. at 698, 110 S.Ct. 2053 (noting that Congress has “ultimate authority over Indian affairs”).

But the fact that Congress enabled the tribes to exercise inherent sovereign power “does not mean that Congress is the source of that power.” Wheeler, 435 U.S. at 328, 98 S.Ct. 1079. On the contrary, the historical relationship between the tribes and the federal government demonstrates that although Congress may authorize the tribes to act, the tribes nonetheless act in their own sovereign capacity.4 As Richard *680A. Friedman, counsel for the government, explained at oral argument: “[Tribal] sovereignty is a vessel that Congress may fill or drain at its pleasure, subject to certain constitutional limitations.”5

Using this metaphor, the Supreme Court’s decision in Duro may be viewed as a snapshot of the tribal sovereignty vessel as it existed at the time Duro was decided. Through the passage of the 1990 amendments, Congress added to the vessel of tribal sovereignty by recognizing the tribes’ inherent power to prosecute members of other tribes who commit crimes on the reservation.6 The 1990 amendments are therefore appropriately characterized as a recognition and confirmation of the tribes’ inherent sovereign criminal jurisdiction over all Indians.7

This result is consistent with the primary holding in Means, namely, that retroactive application of the 1990 amendments would violate the Ex Post Facto Clause. As we explained in Means:

Here, fallowing the Tribal Court to exercise jurisdiction does not prevent the federal courts from exercising jurisdiction as well. There is no question that the federal courts could prosecute Means for what he is alleged to have done. Since each court could impose its own punishment, granting jurisdiction to the Tribal Court would effectively operate to increase the punishment for acts committed prior to the statute.... If the 1990 amendments are applied retroactively [ ] Means would be subject to the maximum federal penalties for his acts plus the maximum penalties the Tribal Court could impose for those same acts.... Thus, regardless of the fact that Means’ acts would have been unlawful under federal law when he allegedly committed them, the increased punishment he would face under [ ] Tribal Court jurisdiction would seem to present an ex post facto problem.

Means, 154 F.3d at 947-48 (footnote omitted). Implicit in this statement is the understanding that tribal and federal sovereignty do not emanate from the same source because if Congress were the *681source of the tribes’ power to prosecute, the Double Jeopardy Clause would bar successive prosecutions and the Ex Post Facto problem would be averted. In other words, the Ex Post Facto holding in Means assumes that both a tribe and the federal government may prosecute a defendant for the same underlying conduct.

This result is also consistent with Congressional intent in enacting the 1990 amendments. As discussed in footnote 3, supra, Judge Reinhardt’s concurring opinion in Means provides an extensive discussion of the legislative history of the 1990 amendments and notes the clear congressional intent “that § 1301 serve as a confirmation of the tribes’ pre-existing jurisdiction, and not as a delegation of such jurisdiction.” Means, 154 F.3d at 951 (Reinhardt, J., concurring). Recognizing the inherent sovereignty of the tribes gives full effect to this Congressional intent.

This reading of the 1990 amendments is also consistent with other portions of the ICRA. For example, the ICRA limits the criminal jurisdiction of tribal courts to sentences not exceeding one year’s imprisonment, a $5,000 fine, or both. See 25 U.S.C. § 1302(7). If the 1990 amendments were an affirmative delegation of power such that the tribal courts were effectively agents of the federal government, then the Double Jeopardy Clause would permit only one prosecution of a criminal defendant. In such a case, if a tribe prosecuted first, regardless of the severity of the defendant’s conduct, the maximum punishment that the defendant could face would be limited as set forth above. Cf Wheeler, 435 U.S. at 330-31, 98 S.Ct. 1079 (applying same reasoning and holding that tribes retain inherent sovereign authority to prosecute member Indians for offenses committed on reservation). It is questionable whether Congress intended such a result. See id. at 331, 98 S.Ct. 1079 (stating that “[w]ere the tribal prosecution held to bar the federal one, important federal interest in the prosecution of major offenses on Indian reservations would be frustrated”).

Finally, this result is consistent with the general structure of federal criminal law as it relates to Indians. The federal government has historically recognized the authority of Indian tribes to exercise jurisdiction over all Indians. See WILLIAM C. CANBY, JR., AMERICAN INDIAN LAW 124-27 (3d ed.1998). Tribal courts, such as the one that asserted jurisdiction over Enas, are independent tribal successors to the Courts of Indian Offenses, which were established by the Secretary of the Interior in the late Nineteenth Century. See Wheeler, 435 U.S. at 327, 98 S.Ct. 1079. The criminal code applied by the Courts of Indian Offenses in the past prescribed each offense with the opening words “[a]ny Indian who ...without reference to the distinction between member and non-member Indians. 25 C.F.R. §§ 11.38-11.74 (1975). A few Courts of Indian Offenses remain in existence and continue to assert jurisdiction over, all Indians who commit crimes in Indian country. 25 C.F.R. § 11.102(a) (2000); see also Wheeler, 435 U.S. at 327, 98 S.Ct. 1079. Virtually all of the tribal courts, which succeeded the Courts of Indian Offenses after the Indian Reorganization Act of 1934, initially adopted the “[a]ny Indian who ...” preamble. See, e.g., Law and Order Code of the Fort McDowell Mohave-Apache Indian Community, Ch. 8 (1967); Law and Order Code of the Confederated Salish and Kootenai Tribes of the Flathead Reservation, Ch. 5, §§ 1-13, 15-20, 22-46 (1962)-both reprinted in Indian Tribal Codes: A Microfiche Collection (Gallagher Law Library, Univ. of Wash. 1981).

*682The Federal Enclaves Act, now codified at 18 U.S.C. § 1152, similarly assumes tribal power to punish any Indian, member or nonmember; it excludes from its reach “any Indian committing any offense in Indian country who has been punished by the local law of the tribe.” 18 U.S.C. § 1152 (emphasis added). Likewise, the Major Crimes Act, 18 U.S.C. § 1153, makes no distinction between member and non-member Indians. The Major Crimes Act creates federal jurisdiction over certain crimes committed by “[a]ny Indian” in Indian country. 18 U.S.C. § 1153. Consistent with this language, the Act has regularly been applied to all Indians, regardless of their tribal membership status. See Canby, supra, at 125-27. Our reading of the 1990 ICRA amendments as recognizing and confirming the inherent sovereign authority of the tribes to exercise criminal jurisdiction over non-member as well as member Indians is consistent with this tradition.

In sum, after Duro, Congress exercised its plenary power under the Indian Commerce Clause, through the 1990 amendments, to restore prospectively the inherent jurisdiction of Indian tribes over all Indians. The 1990 ICRA amendments are therefore appropriately characterized as a recognition and confirmation of the tribes’ inherent sovereign criminal jurisdiction over non-member Indians.8

III.

The Federal Government’s Prosecution of Enas Does Not Violate the Double Jeopardy Clause

We therefore conclude that the Tribe proceeded under its inherent authority when it prosecuted Enas. Although Duro temporarily restricted the reach of tribal power, the inherent sovereignty of tribes is a question of federal common law which Congress has the authority to alter under the Indian Commerce Clause.9 See Mor*683ton v. Mancari, 417 U.S. 5B5, 551-52, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974) (stating that “[t]he plenary power of Congress to deal with the special problems of Indians is drawn both explicitly and implicitly from ... Article I, § 8, cl. 3, [which] provides Congress with the power to ‘regulate Commerce ... with the Indian Tribes[ ]’ see also Arizona Pub. Serv. Co. v. Aspaas, 77 F.3d 1128, 1132 (1995) (as amended 1996). It is pursuant to the Indian Commerce Clause that Congress enacted the 1990 amendments, which recognized and confirmed the tribes’ inherent power to prosecute non-member Indians.

Because the conduct for which Enas was charged allegedly took place after the passage of the 1990 amendments, the Tribe prosecuted Enas pursuant to its own inherent sovereign authority. As set forth above, the dual sovereignty exception allows two independent sovereign entities to prosecute an offender separately for the same conduct without offending the Double Jeopardy Clause. See Heath v. Alabama, 474 U.S. 82, 90, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). Because the Tribe and the federal government are properly considered separate sovereigns for double jeopardy purposes, the dual sovereignty exception permits successive tribal and federal prosecutions of Enas for the same conduct.

. "[U]nless limited by treaty or statute, a tribe has the power to determine tribe membership.” United States v. Wheeler, 435 U.S. 313, 322 n. 18, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978) (citing Cherokee Intermarriage Cases, 203 U.S. 76, 27 S.Ct. 29, 51 L.Ed. 96 (1906)).

. Because the petitioner in Oliphant challenged the jurisdiction of the tribal court, the double jeopardy question at issue in the instant case was not before the Court. Id. at 211, 98 S.Ct. 1011.

. JUDGE REINHARDT'S CONCURRING OPINION IN Means PROVIDES AN EXTENSIVE DISCUSSION OF THE LEGISLATIVE HISTORY OF THE 1990 AMENDMENTS AND THE CLEAR CONGRESSIONAL INTENT “THAT § 1301 SERVE AS A CONFIRMATION OF THE TRIBES' PRE-EXISTING JURISDICTION, AND NOT AS A DELEGATION OF SUCH JURISDICTION.” Means, 154 F.3d at 951. JUDGE REINHARDT CITES THE FOLLOWING ' STATEMENTS, AMONG OTHERS, AS REPRESENTATIVE EXCERPTS FROM THE LEGISLATIVE RECORD: "[THE] LEGISLATION CLARIFIES AND REAFFIRMS THE INHERENT AUTHORITY OF TRIBAL GOVERNMENTS TO EXERCISE CRIMINAL JURISDICTION OVER ALL INDIANS ON THEIR RESERVATIONS,” H.R. CONF. REP. NO. 261, 102D CONG., 2D SESS. 3 (1991) reprinted IN 1991 *678U.S.C.C.A.N. 379, AND "[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,” SEE 137 CONG. REC. H2988-02 (1991) (report on H.R. 972). See Means, 154 F.3d at 950-51 (Reinhardt, J., concurring).

. The tribes exercise "inherent” power when they act in their own sovereign capacity. By contrast, an entity acts pursuant to "delegated” power when it acts as an agent or arm of the federal government. A tribe’s inherent powers include those powers historically recognized as inherent, plus those powers that Congress, in the exercise of its plenary power under the Indian Commerce Clause, recognizes as inherent in the tribe’s sovereignty.

Judge McKeown's opinion suggests that although Congress has plenary power over Indian affairs pursuant to the Indian Commerce Clause, Congress lacks the authority to authorize a new power that is "inherent” in the tribes. Under this view, a tribal power must have historical roots to be "inherent.” But there is nothing new about the idea that the federal government may authorize a new power that is "inherent” in another sovereign. A territory of the United States has no inherent power — when a territory prosecutes, it exercises delegated federal power, and double jeopardy prevents successive prosecutions by both the territory and the federal government based on the same underlying conduct. Puerto Rico v. Shell Co., 302 U.S. 253, 264-65, 58 S.Ct. 167, 82 L.Ed. 235 (1937). When Congress passes an enabling act admitting that territory to statehood, however, the new State is "enabled” to exercise its new and inherent authority. See generally Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d *680684 (1959). In other words, the new State may now act in its own sovereign capacity, rather than as an arm of the federal government. Consequently, the dual sovereignty exception permits successive prosecutions by both the State and the federal government based on the same underlying conduct. Abbate v. United States, 359 U.S. 187, 193-94, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959).

. As counsel for the government further noted, states are dependent sovereigns, which, in some instances, similarly lack the power to act in the absence of Congressional authorization. For example, the Supreme Court has held that the Commerce Clause of the United States Constitution prohibits the states from enacting legislation that unduly burdens interstate commerce in the absence of Congressional authorization. See Camps New-found/Owatonna, Inc. v. Town of Harrison, Maine, 520 U.S. 564, 572-83, 117 S.Ct. 1590, 137 L.Ed.2d 852 (1997). But Congress has the authority to permit the states to enact legislation that would otherwise be unconstitutional under the Commerce Clause. See Pnudential Ins. Co. v. Benjamin, 328 U.S. 408, 437-38, 66 S.Ct. 1142, 90 L.Ed. 1342 (1946). When Congress authorizes a state to act, the state nonetheless acts in its own sovereign capacity. The fact that Congress authorized the state legislation does not mean that when the state legislates, it acts as an arm of the federal government.

. We have not considered and express no opinion on the question whether the phrase ''all Indians” in the 1990 amendments also permits the tribes to exercise criminal jurisdiction over Indians who are not members of any federally recognized tribe.

. As Judge McKeown notes, to the extent that Means suggests that Congress was delegating a federal authority rather than recognizing and confirming an inherent tribal authority when it passed the 1990 amendments, it is no longer the law of this circuit.

. We are not convinced that for congress to recognize and confirm inherent tribal criminal jurisdiction over non-member indians, congress must rely on any particular view of history, other than the historical tradition of treating tribes as sovereign bodies. The concept of "inherent” power need not be so limited. Congress could recognize and confirm inherent tribal power for the first time in the 1990 amendments, and the tribes would still be exercising their own “inherent” sovereign power, rather than "delegated” federal power. See supra note 4.

Indeed, the idea that congress could recognize and confirm inherent tribal power for the first time in 1990 is consistent with the process by which congress recognizes new tribes, "recognition” of a new tribe by the federal government "signifies the existence of a special relationship between the federal government and the concerned tribe that may confer such important benefits as immunity of the indians' lands from state taxation” and "entitlement to many of the federal indian services administered by the department [of interior].” Canby, supra, at 6. For example, between December 30, 1998 and March 13, 2000, Congress recognized two new tribes. See Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs, 65 Fed.Reg. 13,298 (Mar. 13, 2000). These newly recognized tribes may not historically have exercised any independent sovereign powers whatsoever. Nonetheless, by recognizing the tribes, Congress has enabled them prospectively to exercise inherent sovereign authority. The authority these two tribes now exercise is termed "inherent” despite the fact that the authority did not exist in the past, because the tribes, newly recognized by Congress, are now able to act in their own sovereign capacity.

The same concept of inherent authority applies in the present action. Here, the Tribe’s authority to exercise criminal jurisdiction over Enas, a non-member Indian, may be termed "inherent” not simply because the Tribe historically exercised this authority, but because the Tribe now exercises this authority in its own sovereign capacity pursuant to congressional action.

. As one scholar explained: "[the supreme court's] holdings in Oliphant and Duro are not rules of constitutional law, but of federal common law, adopted in the absence of ex*683press congressional intent, because congress retains control of indian policy, the court must respect any 'appropriate legislation’ which corrects the court’s judgment, lest it exceed its article iii authority, [the 1990 ICRA amendments are] intended as just such an expression of congressional policy. L. SCOTT GOULD, The Congressional Response to Duro v. Reina: Compromising Sovereignty and the Constitution, 28 U.C. DAVIS L. REV. 53, 79 (1994) (discussing the views of Philip S. Deloria and Nell Jessup Newton).