(dissenting).
I respectfully dissent.
The issue here is whether the State of Minnesota has jurisdiction to enforce Minn.Stat. § 243.166 (2002) against an enrolled member of an Indian tribe who resides on the reservation of his tribe. Section 243.166 requires that certain predatory offenders provide the address of their residence to their assigned corrections agent or to law enforcement authorities. Minn.Stat. § 243.166, subd. 3(b) (2002). Despite the sovereignty of Indian tribes, state laws may be applied to tribal members: (1) if Congress has expressly so provided; and (2) under exceptional circumstances even if Congress has not expressly provided. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207, 214-15, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). The court finds express Congressional authorization for the enforcement of section 243.166 in Pub.L. 280. As the court recites, Pub.L. 280 (partially codified at 18 U.S.C. § 1162 (2000)) gives the state broad criminal, but limited civil, jurisdiction over most “Indian country” within the state.
The court now holds that section 243.166 is enforceable against enrolled tribal members on the reservation because it is “criminal prohibitory” in nature. It does so in spite of the fact that we have, in the past, twice held that section 243.166 is civil and regulatory, not criminal or penal. In light of these holdings, the court’s reasoning is flawed.
The concurrence fares no better. The concurrence finds the circumstances here to be “exceptional,” justifying the state’s assertion of jurisdiction over Jones. For its definition of “exceptional,” the concurrence relies on four United States Supreme Court cases: Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980); Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976); Rice v. Rehner, 463 U.S. 713, 103 S.Ct. 3291, 77 L.Ed.2d 961 (1983); and Puyallup Tribe, Inc. v. Dept. of Game, 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977). But only one of those cases, Pu-yallup, involved the state’s assertion of jurisdiction over tribal members on the reservation. The other three involved the state’s assertion of jurisdiction over the activities of non-tribal members on the reservation. The Supreme Court has differentiated between the assertion of state jurisdiction over the activities of tribal members, versus non-tribal members, on the reservation. See Cabazon, 480 U.S. at 215-16, 107 S.Ct. 1083 (describing Moe and Colville as cases involving the assertion of jurisdiction over the on-reservation activities of nonmembers).
As noted, we have twice before considered whether section 243.166 is civil or criminal in nature. Kaiser v. State, 641 N.W.2d 900, 907 (Minn.2002); Boutin v. *16LaFleur, 591 N.W.2d 711, 717 (Minn.1999). In Boutin, the defendant complained that requiring him to register as a sex offender violated his substantive due process rights because, although he was initially charged with one of the enumerated offenses for which registration was required, the offense to which he eventually pleaded guilty was not one of the enumerated offenses. 591 N.W.2d at 716. We held that section 243.166 is not criminal in nature, and therefore did not infringe upon Boutin’s substantive due process rights, specifically, the presumption of innocence. Id. at 717. We pointed out that the predatory offender statute does not require an affirmative restraint, that historically similar registration statutes have not been regarded as punishment, that it does not promote the traditional aims of punishment because it does not involve confinement and is not intended to exact retribution, and that the primary purpose of the statute is to create an offender registry to assist in law enforcement investigations. Id.
In Kaiser, we reiterated that section 243.166 is regulatory and non-punitive in nature, and therefore the state was not required to advise a defendant that registration would be required as a consequence of a plea of guilty to one of the enumerated offenses for which registration is required. 641 N.W.2d at 907. We again observed that “the predatory offender law seeks to increase public safety by requiring a specific class of offenders to provide information to law enforcement authorities to assist in keeping track of them,” and we likened the statute to others that require offenders to obey special regulations, such as statutes criminalizing the possession of firearms by a convicted felon and statutes revoking driving privileges after a conviction of driving under the influence. Id. at 905-06. We further noted that section 243.166 “is an expression of a policy statement — -‘society has the right to know of predatory offenders’ presence not in order to punish them, but in order to protect itself.’ ” Id. at 905 (quoting Doe v. Poritz, 142 N.J. 1, 662 A.2d 367, 373 (1995)).
Here, the court attempts to distinguish Boutin and Kaiser on grounds that “section 243.166 has been significantly revised since these cases were decided.” Since we decided Boutin and Kaiser, the statute has been amended to increase the offense grade for a first violation, impose the registration requirement for additional offenses, lengthen the registration period for certain offenses, and modify other procedural requirements. Act of Apr. 3, 2000, ch. 311, art. 2, 2000 Minn. Laws 185, 189-207. But the statute has not been amended in ways that change its fundamental regulatory nature. For example, the statute still does not restrict an offender’s ability to change residences or to move out of state. The registration requirement is still not permanent; Boutin and Kaiser were required to register for only ten years, as is respondent here. Minn.Stat. § 243.166, subd. 6(a) (2002). The registry is still considered private data under the Minnesota Government Data Practices Act. Id., subd. 7. And while any violation is now considered a felony, under the version of the statute under which Boutin and Kaiser were prosecuted, a second violation was also considered a felony. Minn.Stat. § 243.166, subd. 5 (1998). The revisions to the 1998 version of the statute the court characterizes as “significant” are not relevant to the question we must answer in this case, that is, whether the state may enforce it against a tribal member convicted under state law who resides on the reservation of his tribe.1
*17The court also supports its conclusion with the rationale that neither Boutin nor Kaiser “addressed the classification of [the section] under the Cabazon/Stone test.” I find that observation troubling. That neither Boutin nor Kaiser were Native Americans should not inform the court’s classification of the statute. Our determination of the nature of the Registration of Predatory Offenders statute should remain the same regardless of which test we apply, and regardless of the nationality of the offender. In other words, the statute is either civil and regulatory, or it is criminal and prohibitory. I fail to understand how we can conclude that the statute is civil and regulatory when applied to non-Native Americans and to Native Americans who reside off the reservation, while at the same time concluding that the statute is criminal and prohibitory when applied to Indians who reside on the reservation. Such a result is absurd.
Nor do I believe the court fully understands the implications of its holding today. By concluding that section 243.166 is criminal and prohibitory when applied to Indians who reside on the reservation, the court must also conclude that the constitutional issues raised by Boutin and Kaiser are alive and well when section 243.166 is enforced-against such offenders. For example, if the statute is criminal when applied to Native Americans, then the court must conclude that, as Boutin argued, it violates a Native American’s due process rights to require him to register when he has been only accused, but not convicted, *18of one of the enumerated offenses. If the statute is criminal when applied to Native Americans, the court must also conclude that, as Kaiser argued, a Native American’s due process rights are violated if he is not advised, before agreeing to a guilty plea, that he will be required to register as a consequence of the plea.
In concluding that section 243.166 is generally prohibitory and therefore criminal, the court also relies on State v. Busse, 644 N.W.2d 79 (Minn.2002). In Busse, we held that Minnesota has jurisdiction to enforce Minn.Stat. § 171.24, subd. 5 (1998), against an enrolled tribal member who was driving on his reservation although his license had been revoked. 644 N.W.2d at 88. We held that the conduct in question, driving after cancellation as inimical to public safety, presents heightened public policy concerns and is a criminal and prohibitory offense. Id. at 80. The statute at issue in Busse dealt with the narrow conduct of driving after cancellation and prohibited any driving by anyone whose driver’s license had been cancelled. In contrast, Minn.Stat. § 243.166 does not purport to bar registered offenders from living in certain areas or communities, and does not prohibit them from moving, either within the state or into or out of the state. Rather, the statute only requires that a registrant notify the state of his or her address.2
The court also concludes the statute is criminal and prohibitory by focusing on the narrow activity of “an identified predatory offender residing or moving without maintaining a current address registration with the proper authorities,” which happens to be the very thing barred by the statute. As we cautioned in State v. Stone, if we simply focused on the specific conduct prohibited by an individual statute, we could classify virtually every statute on the books as criminal under Pub.L. 280. 572 N.W.2d 725, 729-30 (1997). In equating the mandatory registration requirement to a prohibition, the court engages in precisely the reasoning we cautioned against in Stone.
In Stone, we listed four non-exhaustive factors useful in determining whether an activity violates the state’s public policy in a way serious enough to be considered criminal. Id. at 730. Specifically, we are to consider:
(1) the extent to which the activity directly threatens physical harm to persons or property or invades the rights of others; (2) the extent to which the law allows for exceptions and exemptions; (3) the blameworthiness of the actor; (4) the nature and severity of the potential penalties for a violation of the law.
Id. Clearly, the last two factors — the blameworthiness of the actor and the severity of the penalties for violation — support the criminal nature of the statute. Predatory offenders who “knowingly fail to register” are blameworthy, and the statute provides severe penalties for such knowing failure.
But it is also clear that a predatory offender’s failure to register does not directly threaten physical harm to persons or property, nor invade the rights of oth*19ers. And, while registration aids the police in locating predatory offenders, an offender’s failure to register, by and in itself, does not directly cast the possibility of physical harm on the community at large. Moreover, because the statute punishes only those predatory offenders who “knowingly fail to register,” it can be argued that the statute provides an exception for those offenders who are unaware of the registration requirement. Finally, as we stated in Stone, these four factors are not exhaustive; rather, they function only as an aid to the ultimate determination of whether particular conduct is permitted or prohibited. Id. at 730. The fact that the statute generally permits a predatory offender to reside in Minnesota and to move into and out of the state should govern the court’s determination as to the nature of the statute.
For these reasons, I would conclude that the registration requirement of section 243.166 is civil, rather than criminal, in nature and thus the state’s enforcement of it against Native Americans residing on the reservation is not specifically authorized by Pub.L. 280.
Finally, I note that this entire question will soon be a solution in search of a problem. In July 2006, Congress passed and the President signed the Adam Walsh Child Protection and Safety Act of 2006. Pub.L. No. 109-248, 120 Stat. 587 (to be partially codified at 42 U.S.C. §§ 16901-16991). The Adam Walsh Act, like its predecessor the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, requires registration of sex offenders, but specifically requires registration “in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” Adam Walsh Act § 113(a), 120 Stat. at 593.3 Significantly for this case, the Adam Walsh Act explicitly brings federally recognized Indian tribes within its jurisdiction, § 111(10)(H), 120 Stat. at 593, and requires those tribes to either maintain a registry of offenders or delegate the registration requirement “to another jurisdiction or jurisdictions within which the territory of the tribe is located.” § 127(a)(1), 120 Stat. at 599-600. A tribe that does not elect, within one year of passage of the Adam Walsh Act, to maintain its own registry of offenders is deemed to have elected to delegate that function to another jurisdiction. § 127(a)(2), 120 Stat. at 600. Also significant is the fact that the Adam Walsh Act authorizes the attorney general to make the act applicable to sex offenders convicted before passage of the Adam Walsh Act or its implementation in a particular jurisdiction. § 113(d), 120 Stat. at 594.
Under the Adam Walsh Act, therefore, sex offenders who are members of federally recognized Indian tribes will be required to register, regardless of where they reside. If they reside on the reservation, they will be required to register with the tribe (or with the state, if the tribe has delegated, either explicitly or implicitly, its registry to the state). If they reside on the reservation but work or go to school off the reservation, they will be required to register with the state as well.
Jurisdictions are generally given three years from passage of the Adam Walsh Act to comply, § 124(a), 120 Stat. at 598, meaning that by July 2009 all Native American sex offenders like Jones will unquestionably be subject to registration, either with the state or with a tribe or both, *20and the problem presented by this case will have gone away. Unfortunately, the court’s holding in this case will not.
I respectfully dissent.
. Having attempted to distinguish Boutin and Kaiser on grounds that “section 243.166 has *17been significantly revised since these cases were decided,” the court then claims it is not really necessary to distinguish them at all because " 'punitive' is not the same as 'prohibitory,' and the definition of 'regulatory' under the Kennedy analysis of Boutin and Kaiser does not have the same meaning as ‘regulatory’ employed by Pub.L. 280 and Ca-bazon.” In Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), the Supreme Court outlined the factors to be used in analyzing whether a statute is "penal” (and therefore invokes a defendant’s constitutional right to substantive due process) or “regulatory.” Those factors include
[wjhether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment'— retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.
Id. at 168-69, 83 S.Ct. 554 (footnotes omitted).
We applied the foregoing factors in concluding in Boutin that the statute was "regulatory.” 591 N.W.2d at 717. These factors are remarkably similar to the factors the court now applies under the “shorthand test” in determining that the statute is criminal and prohibitory when applied to Native Americans residing on the reservation. For example, in Boutin we observed first that section 243.166 “does not require an affirmative disability or restraint,” nor does it "restrict Boutin's ability to change residences at will or even to move out of state.” Id. In this case, the scope of the conduct at issue is the first factor the court considers; the statute still does not restrict the offender's ability to change residences at will or to move out of state entirely. Similarly, the Kennedy test we applied in Boutin considers the need for scienter in concluding that a statute is punitive; in this case, the court concludes that the "blameworthiness" of the actor is a factor to be considered in finding the statute to be prohibitory. Use of similar analytical approaches, whether derived from Kennedy, as in Boutin and Kaiser, or from the Cabazon "shorthand” test applied in this case, should not produce a dissimilar result based on the defendant to whom it is applied.
Given the similarity in analytical approaches, the court's attempt to clarify the differences between the result reached in Boutin and Kaiser, on the one hand, and the result reached in this case, on the other, only serves to highlight the disparity in treatment.
. The court characterizes section 243.166 as permitting "residing at or moving to any address * ⅜ * except by predatory offenders who fail to maintain a cwrent address registration as required by the relevant statute.” (Emphasis added.) I find nothing in section 243.166 that bars offenders from moving, whether they register or not. Nothing in the statute requires offenders to request permission of the state before moving, and nothing in the statute allows the state to approve or disapprove of an offender's new residence. The conduct at issue, whether characterized as narrow or broad, is neither the residing nor the moving itself, but the failure to register.
. The Adam Walsh Act also broadens the definition of “sex offense” such that those convicted in tribal courts are explicitly deemed sex offenders. § 111(1), (5), (6), 120 Stat. at 591-92.