                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-3695
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of North Dakota.
Billy Jo Lara, also known as             *
Billy Joe Lara,                          *
                                         *
             Appellant.                  *
                                    ___________

                               Submitted: September 11, 2002

                                   Filed: March 24, 2003
                                    ___________

Before HANSEN, Chief Judge, McMILLIAN, BOWMAN, WOLLMAN, LOKEN,
      MORRIS SHEPPARD ARNOLD, MURPHY, BYE, RILEY, MELLOY,
      and SMITH, Circuit Judges, En Banc.
                                ___________

WOLLMAN, Circuit Judge.

       After a Spirit Lake Nation Reservation tribal court convicted him of assaulting
a police officer, Billy Jo Lara was indicted by the federal government for assault on
a federal officer in violation of 18 U.S.C. § 111(a)(1). Lara moved to dismiss the
indictment on double jeopardy and selective prosecution grounds. Following the
district court’s denial of the motion, Lara entered a conditional plea of guilty to the
indictment, reserving his right to appeal the denial of his motion to dismiss. A panel
of this court affirmed, holding that because the power of the Spirit Lake Nation
derives from its retained sovereignty and not from Congressionally delegated
authority, Lara’s conviction on the federal charge did not run afoul of the Double
Jeopardy Clause. We granted Lara’s petition for rehearing en banc, vacating the
panel’s opinion and judgment. We now reverse.

                                           I.

       While on the Spirit Lake Nation Reservation on June 13, 2001, Lara was
arrested for public intoxication by Bureau of Indian Affairs police officers. The
officers informed Lara, who is not a member of the Spirit Lake Nation, of an
exclusion order prohibiting him from entering the reservation. Upon hearing of the
exclusion order, Lara struck one of the officers with his fist. Lara was charged with
five violations of Spirit Lake Tribal Code: violence to a policeman, resisting lawful
arrest, public intoxication, disobedience to a lawful order of the tribal court, and
trespassing. On June 15, Lara pled guilty to the first three charged offenses and was
sentenced to a jail term of 155 days. On August 29, a federal grand jury returned an
indictment charging Lara with assault on a federal officer in violation of 18 U.S.C.
§ 111(a)(1). After consenting to proceed before a United States Magistrate Judge,
Lara moved to dismiss the indictment on double jeopardy and selective prosecution
grounds or, in the alternative, that discovery be allowed on the claim of selective
prosecution. As recounted above, the magistrate judge denied the motions, and Lara
entered a plea of guilty conditioned on his right to seek appellate review of his motion
to dismiss the indictment.

                                          II.

     We review de novo the denial of a motion to dismiss on double jeopardy
grounds. United States v. Alverez, 235 F.3d 1086, 1089-90 (8th Cir. 2000). The
Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be

                                          -2-
subject for the same offence to be twice put in jeopardy of life or limb.” The right to
be free from multiple prosecutions is limited by the dual sovereignty doctrine, which
permits an independent sovereign to prosecute an individual who has been prosecuted
by another sovereign for the same act. One who violates the laws of two independent
sovereigns commits an offense against each, and thus a second prosecution is not for
“the same offence.” Heath v. Alabama, 474 U.S. 82, 88 (1985).

       The application of the dual sovereignty doctrine “turns on whether the two
entities draw their authority to punish the offender from distinct sources of power.”
Id. The Double Jeopardy Clause does not permit successive prosecutions under the
dual sovereignty doctrine where the authority for the prosecution derives from the
same sovereign source. See, e.g., Waller v. Florida, 397 U.S. 387, 393-95 (1970) (a
city and its parent state); Puerto Rico v. Shell Co., 302 U.S. 253, 264-66 (1937) (the
federal government and a territorial government); Unites States v. Mills, 964 F.2d
1186, 1193 (D.C. Cir. 1992) (en banc) (the federal government and the District of
Columbia). Conversely, the dual sovereignty doctrine permits a state to prosecute a
defendant who has previously been prosecuted for the same act by another state or the
federal government. Heath, 474 U.S. at 93 (two states); Bartkus v. Illinois, 359 U.S.
121, 139 (1959) (upholding state prosecution following federal prosecution); United
States v. Williams, 104 F.3d 213, 216 (8th Cir. 1997) (upholding federal prosecution
following state prosecution). Consequently, whether the dual sovereignty doctrine
applies to Lara’s double jeopardy challenge turns on whether the Spirit Lake Nation
exercised sovereign authority emanating from a sovereign source distinct from that
of the overriding federal sovereign.

       In Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), the Supreme
Court held that a tribe had no inherent power to prosecute non-Indian residents of its
reservation. “By submitting to the overriding sovereignty of the United States, Indian
tribes therefore necessarily give up their power to try non-Indian citizens of the
United States except in a manner acceptable to Congress.” Id. at 210. In United

                                         -3-
States v. Wheeler, the defendant raised a double jeopardy challenge to a federal
prosecution commenced after Wheeler, an enrolled member of the tribe, had been
convicted in tribal court on a lesser included offense. 435 U.S. 313, 315-16 (1978).
Wheeler argued that because Congress has plenary authority to abrogate tribal
sovereignty, the tribe was in effect an arm of the federal government. Id. at 319. The
Court explained that its dual sovereignty precedents did not turn on the extent of
control one sovereign had over another, but whether the two prosecutions exercised
authority derived from the same ultimate source of power. Id. at 319-20. The Court
held that among the “unique and limited” sovereign powers retained by the tribe was
the power to punish “members of the Tribe for violations of tribal law.” Id. at 323-
24. The distinction expressly and repeatedly drawn by the Court was not premised
on the racial status of the defendant but on his membership status. Although tribes
retained authority over their internal affairs, they had been implicitly or explicitly
divested of authority over nonmembers. Id. at 324-25. “The areas in which such
implicit divestiture of sovereignty has been held to have occurred are those involving
the relations between an Indian tribe and nonmembers of the tribe.” Id. at 326.
Because Wheeler was an enrolled member of the tribe, he was prosecuted pursuant
to an inherent sovereign power that had never been divested from the tribe, and thus
subsequent federal prosecution for the same act was not barred. Id. at 332.

       In Montana v. United States, 450 U.S. 544 (1981), the Court again emphasized
the distinction between the retained or inherent sovereignty over internal relations
between members of the tribe and the sovereignty over external relations that
necessarily had been divested from the tribes. “[T]he dependent status of Indian
tribes within our territorial jurisdiction is necessarily inconsistent with their freedom
independently to determine their external relations.” Id. at 564 (quoting Wheeler,
435 U.S. at 326, emphasis added by Montana Court). The Court held that the tribe’s
retained inherent sovereignty did not authorize it to regulate hunting and fishing by
nonmembers on reservation land owned in fee by nonmembers. Id. at 564-65.



                                          -4-
       The question of what power a tribe has over nonmember Indians was addressed
in Duro v. Reina, 495 U.S. 676 (1990). Duro, an enrolled member of a different tribe,
was charged in Pima-Maricopa Indian Community Court with unlawful firing of a
weapon, a misdemeanor, in connection with the death of an Indian boy. Id. at 679-81.
His motion to dismiss for lack of jurisdiction was denied. Id. at 681-82. Because the
Salt River Pima-Maricopa Indian Community did not claim that its jurisdiction over
Dura stemmed from Congressionally delegated authority, the Court was faced with
the question whether the tribe’s retained or inherent sovereignty provided it with
jurisdiction over a nonmember Indian. The Court held that it did not. Id. at 688 (“In
the area of criminal enforcement, however, tribal power does not extend beyond
internal relations among members.”).

       In response to the decision in Duro, Congress amended the Indian Civil Rights
Act (ICRA), 25 U.S.C. § 1301, by revising the definition of “powers of self-
government” to include “the inherent power of Indian tribes, hereby recognized and
affirmed, to exercise criminal jurisdiction over all Indians.” 25 U.S.C. § 1301(2).
The amendment also defined “Indian” to include all Indians subject to federal
jurisdiction under the Indian Major Crimes Act, 18 U.S.C. § 1153. 25 U.S.C. §
1301(4). Thus, under the ICRA amendments, Indians who are enrolled members of
a federally recognized tribe are subject to the jurisdiction of all tribes.

       Although the Supreme Court has not yet construed the post-Duro ICRA
amendments, it has repeatedly reaffirmed its holdings limiting tribal sovereign
authority to tribe members. Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001)
(rejecting under the Montana test the imposition of a hotel occupancy tax on
nonmember-owned reservation hotel on non-Indian fee land); Nevada v. Hicks, 533
U.S. 353, 358-59 (2001) (citing Oliphant for the general rule that “the inherent
sovereign powers of an Indian tribe do not extend to the activities of nonmembers of
the tribe”).



                                         -5-
      Although Indian tribes retain inherent authority to punish members who
      violate tribal law, to regulate tribal membership, and to conduct internal
      tribal relations, United States v. Wheeler, 435 U.S. 313, 326 (1978), the
      “exercise of tribal power beyond what is necessary to protect tribal self-
      government or to control internal relations is inconsistent with the
      dependent status of the tribes, and so cannot survive without express
      congressional delegation.” Montana, 450 U.S. at 564.

South Dakota v. Bourland, 508 U.S. 679, 694-95 (1993).

       In United States v. Weaselhead, 156 F.3d 818 (8th Cir. 1998), we construed the
ICRA amendments in a double jeopardy case factually similar to the present case.
The district court had held that Duro and Oliphant were federal common law
decisions within the ultimate authority of Congress to overrule. 36 F. Supp. 2d 908,
914-15 (D. Neb. 1997). A divided panel of this court reversed, concluding that
“ascertainment of first principles regarding the position of Indian tribes within our
constitutional structure of government is a matter ultimately entrusted to the Court
and thus beyond the scope of Congress’s authority to alter retroactively by legislative
fiat.” 156 F.3d at 824. On rehearing en banc, the panel opinion was vacated and the
district court affirmed by an evenly divided court. 165 F.3d 1209 (8th Cir. 1999).

      The Ninth Circuit has held Duro to be a common law decision that Congress
had the power to override via the ICRA amendments. United States v. Enas, 255 F.3d
662 (9th Cir. 2001) (en banc), cert. denied 534 U.S. 1115 (2002). Although the Enas
court conceded that sovereignty has “constitutional implications,” id. at 673, it
concluded that the lack of an express citation to a constitutional provision indicated
that Duro was a common law decision, an area in which Congress is supreme. Id. at
674-75.

     With all due respect to the holding in Enas, we conclude that the distinction
between a tribe’s inherent and delegated powers is of constitutional magnitude and


                                         -6-
therefore is a matter ultimately entrusted to the Supreme Court. Absent a delegation
from Congress, a tribe’s powers are those “inherent powers of a limited sovereignty
which has never been extinguished.” Wheeler, 435 U.S. at 322 (quoting F. Cohen,
Handbook of Federal Indian Law 122 (1945)) (emphasis omitted). Once the federal
sovereign divests a tribe of a particular power, it is no longer an inherent power and
it may only be restored by delegation of Congress’s power.

       Congress’s broad authority over Indian affairs derives from and is limited by
the Constitution. Some decisions root this power in the Indian Commerce Clause.
Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 531 n.6
(1998); McClanahan v. Arizona, 411 U.S. 164, 172 n.7 (1973). Prior to 1903, the
federal government negotiated agreements with Indian tribes pursuant to its treaty
power, U.S. Const. art. II, § 2, cl. 2, but the combination of an 1871 statute and the
development of the plenary power doctrine ended this process. Antoine v.
Washington, 420 U.S. 194, 201-04 (1975). The Supreme Court has suggested that
we must be guided in part by structural principles that are both implicit and explicit
in the Constitution. See Seminole Tribe v. Florida, 517 U.S. 44 (1996); see also
Duro, 495 U.S. at 684 (“The question we must answer is whether the sovereignty
retained by the tribes in their dependent status within our scheme of government
includes the power of criminal jurisdiction over nonmembers.”). Some decisions
have found plenary authority in the government’s trust responsibility, Stephens v.
Cherokee Nation, 174 U.S. 445, 478 (1899), or in the guardian-ward relationship
between the federal government and the tribes, Morton v. Mancari, 417 U.S. 535, 551
(1974), but references to these non-constitutional sources of power have largely been
supplanted by a reliance on the commerce power. See, e.g., Alaska v. Native Village,
522 U.S. at 531 n.6.

      The ICRA amendments are “a legislative enactment purporting to recast history
in a manner that alters the Supreme Court’s stated understanding of the organizing
principles by which the Indian tribes were incorporated into our constitutional system

                                         -7-
of government.” Weaselhead, 156 F.3d at 823. In exercising its commerce power,
Congress may not “override a constitutional decision by simply rewriting the history
upon which it is based.” Enas, 255 F.3d at 675. Duro’s determination of first
principles regarding Indian sovereignty within the federal system of government is
ultimately one for the Court. The Court reaffirmed this principle subsequent to the
ICRA amendments:

      The dissent’s complaint that we give “barely a nod” to the Tribe’s
      inherent sovereignty argument is simply another manifestation of its
      disagreement with Montana, which announced “the general proposition
      that the inherent sovereign powers of an Indian tribe do not extend to the
      activities of nonmembers of the tribe[.]” 450 U.S. at 565. While the
      dissent refers to our “myopic focus” on the Tribe’s prior treaty right to
      “absolute and undisturbed use and occupation” of the taken area, it shuts
      both eyes to the reality that after Montana, tribal sovereignty over
      nonmembers “cannot survive without express congressional delegation,”
      450 U.S. at 564, and is therefore not inherent.

Bourland, 508 U.S. at 695 n.15 (internal citations omitted). Thus the ICRA
amendments cannot have the effect that they plainly sought to achieve: a retroactive
legislative reversal of Duro. We need not construe the ICRA amendments as a legal
nullity, however. It is apparent that Congress wished to allow tribes to exercise
criminal misdemeanor jurisdiction over nonmember Indians. See Hicks, 533 U.S. at
377 n.2 (“In response to our decision in Duro, . . . Congress passed a statute expressly
granting tribal courts [jurisdiction over nonmember Indians].”) (Souter, J.,
concurring). Nothing in our decision today in any way circumscribes the jurisdiction
so conferred.

       The Spirit Lake Nation exercises authority over external relations only to the
extent that such a power has been delegated to it by Congress. As a nonmember, Lara
was necessarily prosecuted pursuant to that delegated power. Because the dual
sovereignty doctrine does not apply where the ultimate source of power is the same,

                                          -8-
the Double Jeopardy Clause bars the government from maintaining a second
prosecution for the same act. Accordingly, the motion to dismiss the indictment
should have been granted.

      The order denying the motion to dismiss on double jeopardy grounds is
reversed, and the case is remanded to the district court with directions to dismiss the
indictment.

MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting, in which BOWMAN,
   MURPHY, and SMITH, Circuit Judges, join.

       The essential difficulty that I see with the result that the court reaches today is
that the Supreme Court in Duro v. Reina, 495 U.S. 676 (1990), did not base its
decision on the Constitution, nor did the Constitution require the result that the Court
reached there. The result in that case was instead based on federal common law,
nothing more and nothing less, and in the ICRA amendments Congress exercised its
plenary legislative power over federal common law in general and Indian affairs in
particular to define the scope of inherent Indian sovereignty. In other words,
Congress restored to the tribes a power that they had previously exercised but had lost
over the years as a result of Supreme Court decisions. Because the Spirit Lake
Nation, in trying Mr. Lara, was simply exercising its own sovereignty, and not a
power that Congress delegated to it, Mr. Lara’s double jeopardy rights were not
violated.

                                        I.
       According to current legal thought, Indian tribes possessed criminal
jurisdiction over nonmember Indians as part of their full territorial sovereignty prior
to colonization by us or our European predecessors. See Duro, 495 U.S. at 685-86.
The Supreme Court held in Duro, however, that the Indians had lost this aspect of



                                           -9-
their sovereignty because of their “dependent” status. See id.; cf. Oliphant v.
Squamish Indian Tribe, 435 U.S. 191, 210 (1978).

       The court opines in the present case that “[o]nce the federal sovereign divests
a tribe of a particular power, it is no longer an inherent power and it may only be
restored by delegation of Congress’s power.” This holding draws on statements in
Supreme Court opinions that a tribe’s inherent sovereignty consists of those aspects
of sovereignty that the tribes “retained” despite the federal government’s overriding
sovereignty. See, e.g., Duro, 495 U.S. at 685. The court’s apparent premise is that
power cannot be a retained one once the Supreme Court holds that it no longer exists.

        This premise, however, fails both as a matter of history and of logic.
Historically, it misapprehends the materials that the Supreme Court has used over the
years to fashion the relationship between the United States and Indian tribes;
logically, it improperly assumes that there is only one way that a power can be
retained. In my view, the ICRA amendments did not create a new tribal power out
of whole cloth, it merely relaxed a common-law restriction on a power previously
possessed. Regardless of the fact that the ICRA amendments are a “but-for” cause
of the Spirit Lake Nation’s ability to try Mr. Lara here (which of course they
necessarily are), the origin of that power was not the ICRA amendments themselves
but the full territorial sovereignty that the tribes possessed in the past. Cf. Prudential
Ins. Co. v. Benjamin, 328 U.S. 408, 421-33, 437-38 (1946). Thus, the power at hand
is a “retained” one, even if it had been rendered temporarily unavailable by decisions
of the United States Supreme Court.

                                        A.
      Three cases from the early nineteenth century, all of which Chief Justice
Marshall wrote, provided a foundation for federal Indian law: Johnson v. McIntosh,
21 U.S. (8 Wheat) 543 (1823), Cherokee Nation v. Georgia, 30 U.S. (5 Peters)
1 (1831), and Worcester v. Georgia, 31 U.S. (6 Peters) 515 (1832). An examination

                                          -10-
of these cases shows that in forging the legal relationship between Indian tribes and
the government of the United States, “the Supreme Court in the Marshall trilogy
embraced pre-constitutional notions of the colonial process, rooted in the law of
nations, involving both inherent tribal sovereignty and a colonial prerogative vested
exclusively in the centralized government.” See Philip P. Frickey, Domesticating
Federal Indian Law, 81 Minn. L. Rev. 31, 57 (1996). These principles, which the
Supreme Court created from extra-constitutional sources, have “been consistently
followed by the courts for more than a hundred years.” See Felix S. Cohen,
Handbook of Federal Indian Law 123 (1988); cf. Frickey, supra, at 58-60.

       In McIntosh, 21 U.S. at 573, Chief Justice Marshall justified federal power over
Indian tribes in terms of the right of discovery, a euphemism for the right of conquest,
see Judith Resnik, Multiple Sovereignties: Indian Tribes, States, and the Federal
Government, 79 Judicature 118, 119 (1995). That this right was universally
recognized, he asserted, was “prove[d]” by “the history of America from its discovery
to the present day.” McIntosh, 21 U.S. at 574. As Judge Canby has explained, “[t]he
principles of discovery were, of course, European (and, by adoption, federal) law
[and] in Marshall’s view that was the only kind of law that the Supreme Court could
apply.” William C. Canby, Jr., Federal Indian Law 69 (3d ed. 1998).

       Eight years later in Cherokee Nation, 30 U.S. at 16-17, Chief Justice Marshall
held that Indian tribes were foreign states, but ones with a special relationship to the
United States, namely, that “of a ward to his guardian.” In making this determination,
the Chief Justice looked not to the Constitution but, as in McIntosh, to the uniform
custom of nations and the history of our country’s dealings with Indian tribes. See
id. at 16-18. The next year in Worcester, 31 U.S. at 555, Chief Justice Marshall
wrote that the relationship of the Cherokees to the United States “was that of a nation
claiming and receiving the protection of one more powerful: not that of individuals
abandoning their national character, and submitting as subjects to the laws of a



                                         -11-
master.” He then held that under international law the Indian tribes retained the right
to self-government, because

     [t]he very fact of repeated treaties with them recognizes it; and the settled
     doctrine of the law of nations is, that a weaker power does not surrender
     its independence--its right to self-government, by associating with a
     stronger, and taking its protection. A weak state, in order to provide for
     its own safety, may place itself under the protection of one more
     powerful, without stripping itself of the right of government, and ceasing
     to be a state.

Id. at 560-61.

       At the end of the century, the Court reaffirmed these sentiments in United
States v. Kagama, 118 U.S. 375 (1886). A few years before that case, in Ex Parte
Crow Dog, 109 U.S. 556 (1883), the Court had held that the murder of an Indian by
another Indian in Indian country was within the sole jurisdiction of the tribe, and so
federal territorial courts had no power over such a crime. Congress reacted by
passing the Indian Major Crimes Act, 18 U.S.C. § 1153, declaring murder and other
serious crimes committed by an Indian in Indian country to be federal offenses triable
in federal court. In Kagama, the Court upheld the constitutionality of the act, despite
the fact that the Constitution “is almost silent in regard to the relations of the
government which was established by it to the numerous tribes of Indians within its
borders,” 118 U.S. at 378, and even though the Court was “not able to see in [any
clause] of the constitution and its amendments any delegation of power to enact a
code of criminal law for the punishment of [serious crimes],” id. at 379. Rather, the
Court concluded, the legitimacy of the act derived from extra-constitutional sources,
such as its necessity for the Indians’ protection and the fact that the power to pass the
act “must exist in th[e federal] government because it never has existed anywhere
else; because the theater of its exercise is within the geographical limits of the United
States; because it has never been denied; and because it alone can enforce its laws on
all the tribes.” Id. at 384-85.

                                          -12-
       Unlike Kagama, which addressed the question of whether a grant of federal
criminal jurisdiction in Indian country was consistent with the federal government’s
role as “guardian,” Oliphant, United States v. Wheeler, 435 U.S. 313 (1978), and
Duro, addressed the converse question, that is, whether the retention of certain
criminal jurisdiction in Indian country was consistent with the Indian tribe’s role as
“ward.” Despite this difference, all four cases reached their answers in the same way,
namely, by reference to governmental custom and practice and to the general
principles of the jus gentium. What is importantly missing from all of these cases is
the slightest intimation that their outcome was dictated by some substantive
constitutional principle.

       In Wheeler, 435 U.S. at 324-26, for instance, the Court analyzed various
statutes establishing federal criminal jurisdiction over crimes involving Indians, and
described how these statutes had left in place tribal criminal jurisdiction over
members as part of the inherent sovereign power of Indian tribes. In discussing why
none of these statutes had divested the Indians of this power, the Court restated the
sentiments expressed in Worcester that the “ ‘settled doctrine of the law of nations is,
that a weaker power does not surrender its independence--its right to self-government,
by associating with a stronger, and taking its protection.’ “ See Wheeler, 435 U.S.
at 326 (quoting Worcester, 31 U.S. at 560-61). Wheeler thus quite clearly decided
that tribes retained criminal jurisdiction over tribal matters as a matter of federal
common law.

     Although neither Oliphant nor Duro ever explicitly stated that it was a
common-law decision, or referred to the law of nations, these decisions too were
founded on federal common law. See, e.g., Canby, supra, at 127; Philip P. Frickey,
A Common Law for our Age of Colonialism: The Judicial Divestiture of Indian Tribal
Authority over Nonmembers, 109 Yale L.J. 1, 65 (1999); L. Scott Gould, The
Consent Paradigm: Tribal Sovereignty at the Millennium, 96 Colum. L. Rev. 809,

                                         -13-
853 (1996). In both cases, the Court analyzed history and governmental custom and
devised from them the principle that, as a result of the dependent status of Indian
tribes, tribal criminal enforcement power did not extend beyond internal relations
among its members. See Duro, 495 U.S. at 685-92; Oliphant, 435 U.S. at 196-210;
cf. United States v. Enas, 255 F.3d 662, 668-69 (9th Cir. 2001) (en banc), cert.
denied, 534 U.S. 1115 (2002).

       The Court in Duro did say that any power delegated to the tribes would be
“subject to the constraints of the Constitution,” 495 U.S. at 686, and that there would
be due process concerns in subjecting nonmember Indians to trial in tribal courts
because those courts did not provide constitutional protections as a matter of right,
see id. at 693-94. But none of this can serve to convert Duro into a “constitutional”
decision. A decision is “constitutional” only when it states, or necessarily implies,
that the Constitution requires the result that it reaches.

       In Duro, as in all cases, the Court had the obligation and the power under
Article III to decide the case before it and “to say what the law is.” Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177 (1803). Without any statute stating whether
Indian tribes had criminal jurisdiction over nonmember Indians, it acted as a
common-law court, using whatever sources were relevant and readily at hand to
ascertain the applicable legal principles and to answer the question before it. As with
all federal common law, however, Congress has the legislative authority to revise the
result in Duro in whatever way it desires.

                                           B.
        The court holds that Duro’s distinction between inherent and delegated powers
is of “constitutional magnitude.” I take that to be a claim that Duro was based on the
Constitution and, therefore, that the Court’s determination in Duro of what constitutes
inherent tribal sovereignty is final and binding on Congress. The court, however,
never says precisely where in the Constitution principles of Indian sovereignty might

                                         -14-
actually reside. Cf. United States v. Weaselhead, 156 F.3d 818, 825 (8th Cir. 1998)
(M.S. Arnold, J., dissenting).

       The court does provide two possibilities. First, it refers to “structural principles
that are both implicit and explicit in the Constitution,” citing Duro and Seminole
Tribe. The court, however, does not describe what these structural principles are, nor
does it explain why they derived from the Constitution. In fact, “no court has [ever]
found a constitutionally protectible interest in tribal sovereignty itself,” Canby, supra,
at 85; and, “[t]o the extent that Indian tribes are discussed in the Constitution, they
seem to be recognized as having a status outside its” perimeters, Judith Resnik,
Dependent Sovereigns: Indian Tribes, States, and the Federal Courts, 56 U. Chi. L.
Rev. 671, 691 (1989).

       Perhaps the proposition that the court is urging is that since certain attributes
of state sovereignty derive from the structure of the Constitution, see, e.g., Alden v.
Maine, 527 U.S. 706, 724 (1999), the perimeters of inherent tribal sovereignty must
do so as well. That proposition, however, fails to recognize the fact that “[u]nlike
states, which ceded some sovereignty with the passage of the Constitution, Indian
tribes did not.” Resnik, Multiple Sovereignties, supra, at 119. The Indian tribes did
not participate in the making of the Constitution, so its structure cannot tell us
anything about the extent of their sovereignty. Cf. Worcester, 31 U.S. at 555, 559-60;
Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 Harv. L.
Rev. 881, 949 (1986). Thus, as Chief Justice Marshall noted in Worcester, Indian
nations, such as the Cherokees in Worcester, remained “distinct, independent political
communities” even after the adoption of the Constitution. Worcester, 31 U.S. at
559-61. The status of Indian tribes in our constitutional order is thus more akin to
that of foreign nations than to that of the states.

       Second, the court points out that in recent years references to “non-
constitutional sources of [Congress’s plenary power] have largely been supplanted

                                           -15-
by a reliance on the [Indian] commerce power.” But the fact that the scope of the
Indian commerce power has expanded in recent years and is now often seen as the
source of legislation that regulates the Indians as dependent communities, e.g., Alaska
v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520, 531 n.6 (1998), does not mean
that the traditional view of the origins of the relationship between Indian tribes and
the United States has somehow been submerged. When pressed for a source of
Congress’s plenary authority, the Court tends increasingly to rely on the Indian
commerce clause, I think, simply because in the particular context, it sees no need to
look further.

       The source of Congress’s plenary power is in any case beside the point:
Regardless of its source, it is well settled that Congress’s power is plenary. It is a
non sequitur to intimate that because the source of the plenary power may have
changed from a “non-constitutional” to a constitutional source, Congress’s ability to
legislate is somehow circumscribed. If that were true, then Congress’s authority
would no longer be plenary. Cf. Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903).

        Even if the mere existence of the Indian commerce clause somehow restricted
the powers that tribes inherently possess, moreover, inherent tribal sovereignty would
still be a matter of federal common law. Consider, as an analogy, dormant commerce
clause restrictions on state legislation that unduly burdens interstate commerce. A
court can invalidate a state law on dormant commerce clause grounds, but Congress
can reverse the court’s decision and authorize the state to re-enact the legislation:
Dormant commerce clause prohibitions are thus considered federal common law.
See, e.g., Adrian Vermeule, Three Commerce Clauses? No Problem, 55 Ark. L. Rev.
1175, 1175 (2003); cf. Frickey, A Common Law, supra, at 71-72. Thus, no matter
how one views the matter, Congress retains legislative authority to determine
prospectively what power tribes inherently possess.




                                         -16-
                                            C.
        The court also relies on South Dakota v. Bourland, 508 U.S. 679 (1993), a case
that it notes was decided “subsequent to the ICRA amendments.” The Supreme Court
in that case did state that the exercise of tribal power beyond what is necessary to
control internal relations is not inherent and therefore cannot survive without express
congressional delegation, see id. at 694-95 & n.15, and our subsequent case law is
replete with similar statements. But, as always, language must be understood in
context, and the context in which these statements were made was different in a way
that makes the present case legally distinguishable.

       Although Bourland and some other cases that were decided after the ICRA
amendments, e.g., Nevada v. Hicks, 533 U.S. 353 (2001), have addressed inherent and
delegated powers, they did not involve the amendments. The question raised here,
namely, whether Congress could restore aspects of sovereignty to tribes, rather than
delegate power to it, therefore did not arise in those cases and could not have been
decided by them. It is only if Congress does not have the power to restore aspects of
Indian sovereignty that delegation becomes the only option. In my opinion, the
statements in cases such as Oliphant and Duro that the jurisdiction in question was
not inherent and could only be delegated by Congress described what would be true
absent the sort of legislation that we have before us. Cf. Hicks, 533 U.S. at 377 n.2
(Souter, J., concurring).

                                           II.
       In reaching its conclusion, the court rejects a contrary result by a unanimous
eleven-judge court in Enas, 255 F.3d 662. Though the rationales in the two opinions
in that case differed somewhat, all of the judges agreed that the inherent sovereignty
of Indian tribes was a matter of federal common law, not constitutional law. For the
reasons that I have tried to explain, that conclusion seems to me to be ineluctable.




                                         -17-
       The basic question in this case is whether providing tribes with the inherent
power to try nonmember Indians for crimes falls within Congress’s plenary authority
over Indian affairs (which the court agrees that Congress has). In light of the
Supreme Court pronouncement that all “aspect[s] of tribal sovereignty ... [are] subject
to plenary federal control and definition,” see Three Affiliated Tribes of Fort Berthold
Reservation v. Wold Eng’g, 476 U.S. 877, 891 (1986), it seems to me that the only
possible answer to that question is that Congress can do what it quite plainly sought
to do here.

      I therefore respectfully dissent.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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