Full opinion text
ORDER KORNMANN, District Judge. [¶ 1] Defendant filed a motion to dismiss (Doc. 26) which motion is based on claims of double jeopardy, claimed violations of constitutional rights of due process and equal protection, and a claimed bill of attainder. The parties initially briefed the issues. U.S. Magistrate Judge Moreno conducted a hearing at which certain facts were stipulated and defendant was permitted to supplement the record (H.Tr.8-10, Doc. 30). The magistrate filed and served a report and recommendation (Doc. 35), recommending that the motion be denied. [¶ 2] I conducted a de novo review of the transcript of the hearing and all the files and records herein. Defendant timely filed objections and a request for a remand, or more correctly for a recommittal (Doc. 45). One basis for the recommendation to deny the motion was the Eighth Circuit’s en banc decision in United States v. Weaselhead, 165 F.3d at 1209. The opinion of the district court, United States v. Weaselhead, 36 F.Supp.2d 908 (D.Neb.1997), was affirmed by an equally divided court. The portion of the report and recommendation of the magistrate relying in part on the en banc decision was rejected by me as an erroneous statement of the law. The en banc decision is not binding precedent. Decisions by an equally divided court decide only the particular case. They have no precedential effect. They have a res judicata effect but not a stare decisis effect. See Loeffler v. Tisch, 806 F.2d 817 (8th Cir.1986), United States v. Grey Bear, 863 F.2d 572 (8th Cir.1988), Redding v. Minnesota, 881 F.2d 575 (8th Cir.1989), and United States v. Payne, 940 F.2d 286 (8th Cir.1991). [¶ 3] As to the balance of the report and recommendation, I acted pursuant to 28 U.S.C. § 636(b)(1)(C) to recommit the matter to the magistrate for two reasons. First, neither the parties nor the magistrate initially gave consideration to a case decided by the United States Supreme Court on June 25, 2001, Nevada v. Hicks, — U.S. -, 121 S.Ct. 2304, 150 L.Ed.2d 398. Nor was any consideration given to Hicks by any judge in United States v. Enas, 255 F.3d 662 (9th Cir.2001). While Hicks is a civil case and thus not “on point”, the various Justices discuss in Hicks the various aspects of tribal court jurisdiction. It can be argued that the opinion of the Supreme Court is that any tribe’s adjudicative jurisdiction over nonmembers is at most only as broad as the jurisdiction granted legislatively by Congress. Second, I initially believed that the additional evidence sought by the defendant might be relevant. At a minimum, I believed that the defendant was entitled to have all such evidence a part of the record, either as admitted into evidence or as an offer of proof. I therefore, on July 26, 2001, recommitted the matter (Doc. 46) with instructions to the magistrate. [¶ 4] The magistrate proceeded in accordance with the order of recommittal. Defendant filed and served an offer of proof (Doc. 85). The magistrate served and filed a supplemental report and recommendation (Doc. 93). Defendant served and filed objections (Doc. 97) to the supplemental report and recommendation. I have again given de novo consideration to all documents and records in this case. [¶ 5] The issue squarely before the court has not been directly decided by the United States Supreme Court or by the United States Court of Appeals for the Eighth Circuit. Despite the Hicks case and the other Supreme Court cases indicating skepticism as to any claimed “inherent sovereignty” of Indian tribes acting through their tribal courts, it is not the function of a district court to predict what the Supreme Court will do in a given case. It is a virtual certainty that this ruling on the motion to dismiss, however decided, will be appealed and the Eighth Circuit will again be presented with the “opportunity” to rule on the same issue presented in United States v. Weaselhead, 156 F.3d 818 (8th Cir.1998). Although the panel decision was vacated on December 4, 1998, it is difficult to add to the scholarly discussions in both the panel opinion by Chief Judge Wollman and the dissent by Judge Morris Sheppard Arnold. It is also difficult to add to the scholarly opinion of United States District Judge Thomas Shanahan in United States v. Weaselhead, 36 F.Supp.2d 908 (D.Neb.1997). We do not know, based upon a different make-up of the Court of Appeals, whether the views of Chief Judge Wollman or Judge Morris Sheppard Arnold will carry the day. Indeed, their views of the law may have changed. [¶ 6] Defendant Archambault, like Mr. Weaselhead, is an Indian prosecuted by a tribe (in this case the Cheyenne River Sioux Tribe) as to which he is not an enrolled member. Archambault, like Weaselhead, pled guilty to having violated the tribal code and was later prosecuted for the exact same conduct by the United States government. Archambault admitted in tribal court to having assaulted and injured his domestic companion, a member of the Cheyenne River Sioux Tribe, and that the assault occurred on the reservation. Archambault, like Weaselhead, claims double jeopardy, the claim being that the tribe had no inherent authority to prosecute him and that the only basis for such authority comes from a federal statute. Thus, as the argument goes, the two prosecutions stem from the same authority, the United States government, the bottom line being that only one sovereign is involved as to Archambault. Obviously, if the tribal prosecution was based on inherent tribal sovereignty, two sovereigns are involved as to Archambault and there is no double jeopardy. [¶ 7] Tribes have historically prosecuted nonmember Indians for misdemeanor offenses committed within the territory of such tribe. Congress recognized this fact as part of the legislative history in the enactment of Pub.L. No.102-137. See 137 Cong.Rec. E2165-04 in which then Congressman George Miller stated the acknowledgment of the Congressional committee that tribes “have always been able to exercise misdemeanor criminal jurisdiction over all Indians on tribal lands.” Such prosecutions came to a halt in the Eighth Circuit with the decision in Greywater v. Joshua, 846 F.2d 486 (8th Cir.1988), holding that a tribe has no inherent sovereignty to prosecute nonmember Indians. “We find the Devils Lake Sioux Tribe’s exercise of criminal jurisdiction over nonmember Indians beyond what is necessary to protect the rights essential to the Tribe’s self-government and inconsistent with the overriding interest of the federal government in ensuring that its citizens are protected from unwarranted intrusions upon their personal liberty. We thus conclude that the Tribe’s authority to prosecute nonmember Indians is nonexistent.” Id. at 493. Greywater cited and relied upon United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), and Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980). Greywater, while acknowledging Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), engaged in no discussion of the Montana factors. Greywater, in refusing to adopt the rationale of Duro v. Reina, 821 F.2d 1358 (9th Cir.1987), correctly forecast the reversal of the Ninth Circuit in Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990). Tribes across the United States then ceased prosecuting Indian non-tribal members. There was at that time, as we know, no Congressional action with regard to any claimed inherent sovereignty of tribes to prosecute nonmember Indians. [¶ 8] Congress acted promptly by virtue of Pub.L. No. 102-137 to amend the Indian Civil Rights Act, codified at 25 U.S.C. § 1301-03 (1994), by expressing the inherent power of Indian tribes to exercise criminal jurisdiction over all Indians in Indian Country. See 25 U.S.C. § 1301(2). Congress specifically found that this was a power of self-government which Congress recognized and.affirmed as having always existed and which had never been “taken away” by Congress. [¶ 9] There are perhaps three possibilities as to what Congress did as a matter of law. First, Congress simply acted to expressly grant and legislatively delegate to tribes the authority to prosecute nonmember Indians, curing what Duro found did not exist. Second, the Congressional finding of inherent sovereignty by tribes over nonmember Indians is a nullity, the reason being that Duro was decided based upon the United States Constitution. Third, Congress did not delegate anything or act in a substantive manner but simply defined what the federal common law has always been. The ultimate question becomes: who is permitted to define what sovereign powers tribes may have lost or may have retained upon being incorporated into the United States? Is it Congress or is it the judiciary? [¶ 10] Intertwined, of course, are possible constitutional questions as to whether nonmember Indians may be treated differently than nonmember non-Indians. It is beyond dispute that non-Indians may not be prosecuted criminally in any tribal court. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978). The matter is further complicated by the fact that the Bill of Rights does not apply to Indians in tribal courts. See Duro, 495 U.S. at 693, 110 S.Ct. 2053, and Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896) (although dealing with the question of whether cases in tribal court could be prosecuted without an indictment by a grand jury). We know that the Indian Civil Rights Act of 1968 does not guarantee the same rights that other Americans have. There is no right to counsel at public expense for Native Americans who are indigent and charged in tribal court. This is despite the fact that our reservations, in terms of poverty, are national disgraces. I take judicial notice of the fact that the vast majority of tribal courts in the District of South Dakota do not provide lawyers for indigents. Some provide lay assistance. Some provide nothing. Some provide a lawyer, the public defender. Other than being locked in a tribal jail for some period of time, there are possible collateral consequences to being convicted in tribal court. While tribal court convictions do not count in computing the criminal history of a person who is later convicted and sentenced in federal court, such convictions may be considered under U.S.S.G. § 4A1.3 (adequacy of criminal history category). See U.S.S.G. § 4A1.2(i). The government sometimes argues for an upward departure based upon a defendant’s previous convictions or even charges pending in tribal court. Upward departures are sometimes ordered based on tribal court histories. Such convictions are certainly matters to be considered by the sentencing judge. See U.S.S.G. § 1B1.4 under which the judge “may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law.” See 18 U.S.C. § 3661. [¶ 11] Archambault argues that Congress did nothing other than legislatively delegate to the tribe the authority to prosecute him as a nonmember Indian. A very troubling aspect to this argument is that it can be contended that Congress could not constitutionally so delegate without extending all constitutional protections. This full panoply of protections, as discussed above, is not found in tribal courts or by virtue of the Indian Civil Rights Act. What is the possible basis for the contention that Congress could not delegate any such thing? “Our cases suggest constitutional limitations even on the ability of Congress to subject American citizens to criminal proceedings before a tribunal that does not provide constitutional protections as a matter of right. Cf. Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) ... We decline to produce such a result through recognition of inherent tribal authority.” Duro, 495 U.S. beginning at 693, 110 S.Ct. 2053. Examining such language, Indian tribal members are of course “American citizens” being brought before a tribunal, albeit of their own tribe, that does not provide constitutional protections as a matter of right. Given the fact that Congress had not then acted to even arguably delegate any authority to prosecute nonmember Indians, I interpret the quoted language as nothing more than dicta. I certainly decline any thought of judicially amending the Indian Civil Rights Act to conform to the Bill of Rights. [¶ 12] Archambault has attempted to establish that the tribal court was, in effect, a creature or arm of the United States government (and thus without sovereignty as to criminal prosecutions) because of the annual multi-million dollar federal appropriations made to the tribe for police, courts, and prosecutors. The magistrate found that this evidence had no relevance and I agree. Common sense tells us that the vast majority of the expenditures are in connection with the tribe prosecuting its own enrolled members rather than Indian nonmembers. Carried to its logical conclusion, the argument of the defendant would mean that, given the federal appropriations to states, counties and municipalities for law enforcement purposes, states would not be separate sovereigns but merely agents of the federal government. This simply makes no sense. [¶ 13] The magistrate, in recommending that the motion to dismiss be denied, relied largely on Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). Under Montana, a tribe may retain inherent power to exercise jurisdiction over a nonmember Indian when that person’s conduct “threatens or 'has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” 450 U.S. at 566, 101 S.Ct. 1245. Montana dealt with hunting and fishing rights of non-Indians on land owned in fee by non-Indians, although contained within the reservation boundaries. Here, Archambault and the victim lived as “husband and wife” in a house owned by the tribe or more correctly an Indian Housing Authority. Their three children lived with them. I acknowledge and agree with the statements of the magistrate that the tribe’s political integrity would be threatened greatly if the tribe would be unable to prosecute a nonmember Indian who has assaulted a tribal member on the reservation. The question of the power to prosecute a nonmember Indian in tribal court is not, however, the issue. There is no question that a tribe has the authority to do that, whether by virtue of inherent jurisdiction that has always existed (as confirmed by Congress) or by virtue of a legislative delegation of such power by Congress to the tribe. The tribe’s ability tp prosecute violent nonmember Indians is not in question. If the 1990 amendments to the Indian Civil Rights Act constitute only a delegation of power to tribal courts, it would be clear that nonmember Indians who have been prosecuted in tribal court under circumstances in which jeopardy has attached could not again be charged with essentially the same offense in federal court. [¶ 14] There can be serious problems and concerns with regard to tribal prosecutions of nonmember Indians. First, tribal officials might well hesitate to promptly arrest, charge and try a nonmember Indian who has committed some serious act of violence. This is assuming, of course, that tribal authorities could readily determine that the alleged offender was not an enrolled member. This information is not always readily available or ascertainable. There is, of course, no registration system on any reservation for nonmembers residing within the confines of that reservation. Since the defendant has the right to remain silent, tribal officials might have to be in touch with numerous other tribes to determine the actual tribal membership of the person in question. Are tribal authorities to stay their hands with a drunk, disorderly and perhaps dangerous member of a family unit until they can investigate whether the suspect is a member of that tribe or some other tribe? If tribal authorities knew they were dealing with a nonmember Indian, they would certainly carefully consider the danger that a plea of guilty would later forestall any federal prosecution under the Major Crimes Act, 18 U.S.C. § 1153. If it is likely that the serious nature of a given case will later justify a federal prosecution, it would seem all the more important for tribal authorities to remove the suspect from the home or other location and place the person in custody. Yet, if the nonmember is charged and in custody for the tribal offense, how would tribal officials prevent the nonmember defendant from almost immediately entering a plea of guilty in tribal court? That is exactly what Archambault did here. A great influx of additional agents of the Federal Bureau of Investigation and Assistant United States Attorneys would be required to be available for consultation and an immediate guess as to whether some alleged criminal act might later justify a federal prosecution of a person first determined to be a nonmember Indian. The Major Crimes Act, as we know, extends federal jurisdiction over the enumerated crimes committed by “[a]ny Indian in Indian Country.” Enrolled members of the tribe would be subject to two prosecutions and tribal officials could promptly act to arrest, charge and attempt to convict those known member Indians in tribal court without fear of endangering a later federal prosecution. Tribal members would be subject to the awful and discriminatory impact of the federal sentencing guidelines in federal court. Nonmember Indians would not unless they were at least conceivably allowed to “run at large” until the federal government could marshal its forces through the Federal Bureau of Investigation and the United States Attorney’s office. These concerns and these potential* differences as to treatment of tribal members and nonmembers (including protection of the public from violent nonmember Indians) would certainly appear to have a direct effect on the political integrity and the welfare of the tribe. We must keep in mind also that tribal courts have very limited criminal jurisdiction. They cannot impose more than one year of imprisonment or a fine of $5,000.00 or both. 25 U.S.C. § 1302(7). Each tribe would be forced into a situation where it would be treating some of its own members more harshly than nonmembers. How long would a tribal government survive who acted in such fashion? Tribal judges and tribal prosecutors are not protected from political influences as are federal judges and federal prosecutors. [¶ 15] It is clear that, if Montana provides the test, the motion of the defendant should be denied because there is no double jeopardy. Montana, however, did not deal with issues of double jeopardy or inherent sovereignty for the tribe to prosecute nonmember Indians. [¶ 16] The report and recommendation does not discuss South Dakota v. Bourland, 508 U.S. 679, 113 S.Ct. 2309, 124 L.Ed.2d 606 (1993). The issue before the Court cannot be decided without some consideration of Bourland. The panel decision in Weaselhead noted that Bourland was issued “after the changes (the legislation in which Congress acted to “undo” Duro) had been enacted and permanently codified ...” 156 F.3d at 823. This, of course, is a fact and not a legal theory. Bourland, however, did not involve issues of double jeopardy and inherent sovereign powers of a tribe to prosecute nonmember Indians for offenses committed on the reservation. Bourland answered the question whether this same tribe had the authority to regulate hunting and fishing by non-Indians on lands and overlying waters located within the tribe’s reservation which lands had been acquired by the United States for the operation of the Oahe dam and reservoir on the Missouri River. We know that the Supreme Court did not address the tribe’s regulatory jurisdiction over nonmember Indians since that issue was neither pled nor tried. See 508 U.S. at 685, n. 6, 113 S.Ct. 2309. I therefore believe that Bourland does not answer or even suggest the answer to the question here presented as to inherent sovereignty. The majority opinion by Justice Thomas addressed in a rather narrow context the question of inherent tribal sovereignty. 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, 101 S.Ct. at 1258. 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, 101 S.Ct. at 1258, and is therefore not inherent. 508 U.S. at 695 n. 15, 113 S.Ct. 2309, 124 L.Ed.2d 606 (internal citations omitted). [¶ 17] At least one court believes that the panel decision in Weaselhead was wrongly decided. See United States v. Enas, 255 F.3d 662, 674-75 (9th Cir.2001) (en banc). Law review authors have criticized it. See Frank Pommersheim, “Our Federalism” in the Context of Federal Courts and Tribal Courts: An Open Letter to the Federal Courts’ Teaching and Scholarly Community, 71 U.Colo.L.Rev. 123, 175-79 (2000); Nancy Thorington, Civil and Criminal Jurisdiction Over matters Arising in Indian Country: A Roadmap for Improving Interactions Among Tribal, State and Federal Governments, 31 McGeorge L.Rev. 973, 1000-01 (2000); Christopher B. Chaney, The Effect of the United States Supreme Court’s Decisions During the Last Quarter of the Nineteenth Century on Tribal Jurisdiction, 14 B.Y.U.JJPub.L. 173, 179-80 (2000); 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, 85 n. 322 (1999); see also Note, Dispelling The Constitutional Creation Myth of Tribal Sovereignty, United States v. Weaselhead, 78 Neb.L.Rev. 162, 180-204 (1999). I have recently read “A Slippery Slope”, authored by Ben Welch in the October 2001 American Indian Report. That article traces the history of important decisions and legislation affecting tribes, Native Americans and states. [¶ 18] I believe that we are dealing with a matter of federal common law. I do not believe the Congress acted beyond its authority. I do not believe that Duro was founded on constitutional principles but rather on a finding by the judiciary as to what the federal common law was. Federal common law has since Duro been clarified by Congress. It now exists just as Felix Cohen described it in 1945 in the first compendium of federal Indian law, Handbook of Federal Indian Law, namely that the rights of a tribe to sovereignty and self-government are only restricted if the federal government, acting through the Congress, expressly extinguishes those rights, wholly or in part. Mr. Cohen was quoted in United States v. Wheeler, 435 U.S. 313, 322, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), to the effect that tribes possess “inherent powers of a limited sovereignty which has never been extinguished.” By virtue of the action of the United States Congress declaring the federal common law, the tribe here exercised inherent sovereignty. There is no double jeopardy and the motion to dismiss should be denied. The motion should also be denied as to the claims of a bill of attainder and as to claims of violations of constitutional rights of due process and equal protection. Nonmember Indians will simply be subjected to the same tribal court systems as member Indians. Indians who choose to leave their own reservations and live on another reservation make such choices in a conscious manner. They will receive the same treatment and rights as all other Indians living on that particular reservation. [¶ 19] Now, therefore, [¶ 20] IT IS ORDERED, as follows: 1) The conclusions of the report and recommendation (Doc. 35) and the supplemental report and recommendation (Doc. 93) are adopted as modified herein. 2) The objections of the defendant (Doc. 97) are overruled. 3) The motion to dismiss the indictment (Doc. 26) is denied. 4) The offer of proof (Doc. 85) is rejected. [¶ 21] Dated at Pierre, South Dakota, this 16th day October, 2001. REPORT AND RECOMMENDATION FOR DISPOSITION OF DEFENDANT’S MOTION FOR DISMISSAL MORENO, United States Magistrate Judge. I. [¶ 1] Defendant, James Archambault, aka James Skunk (Archambault), filed a Motion for Dismissal and supporting Memorandum on June 19, 2001. Docket Nos. 26-27. After plaintiff, United States of America (government), filed a written response to the Motion, Docket No. 28, and Archambault filed a Supplemental Memorandum, Docket No. 30, a hearing was held at which certain facts were stipulated to and Archambault was allowed to supplement the record. H.Tr. 8-10; Docket No. 33. Because Archambault’s Motion is a dispositive one, this Court is only authorized to determine the same on a report and recommendation basis. Pursuant to 28 U.S.C. § 636(b)(1), the Court does now make and propose the following report and recommendation for disposition of Ar-chambault’s Motion. II. [¶ 2] Archambault is an adult Indian male and an enrolled member of the Standing Rock Indian Tribe. Docket No. 33. On October 19, 2000, he pled guilty to domestic violence and to endangering the welfare of a child in Cheyenne River Sioux Tribal Court and was sentenced to a one year jail term, with six months suspended on conditions, and ordered to pay a fine and court costs. Docket No. 27, Ex. A. [¶ 3] On December 14, 2001, a federal grand jury returned a single count indictment charging Archambault with assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 1153 and 113(a)(6). Docket No. 1. The parties do not dispute that the assault charge involves the same conduct as the domestic violence offense for which Archambault had already been prosecuted, convicted and sentenced by the Cheyenne River Tribal Court. Hrg. Tr. 9. [¶ 4] In response to the indictment, Ar-chambault filed a Motion for Dismissal with supporting Memoranda, alleging that the subsequent federal prosecution was barred by the Double Jeopardy Clause, that his due process and equal protection rights were violated and that 25 U.S.C. § 1301 constitutes an impermissible bill of attainer. Docket Nos. 26, 27, 30. III. [¶ 5] The Fifth Amendment’s Double Jeopardy Clause provides that “[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb.” This constitutional guarantee prohibits “a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.” Department of Revenue v. Kurth Ranch, 511 U.S. 767, 769 n. 1, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994); see also North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The rationale behind the doctrine is this: if, in the course of a single act, a person violates the laws of two sovereigns, he has committed two separate crimes for which each sovereign has an independent right to prosecute him for. Heath v. Alabama, 474 U.S. 82, 88, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985); United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 (1922). [¶ 6] This Court thus must determine whether the two entities that prosecuted Archambault, namely the Cheyenne River Sioux Tribe (CRST) and the government, are “separate sovereigns” for purposes of the Double Jeopardy Clause. In order to do so, the Court must ascertain “the ultimate source of power under which the respective prosecutions were undertaken.” United States v. Wheeler, 435 U.S. 313, 320, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); see also, Heath, 474 U.S. at 88, 106 S.Ct. 433. IV. [¶ 7] When Indian tribes are involved, it is difficult to determine double jeopardy violations because tribes exercise various forms of power that emanate from different sources. On the one hand, tribes are autonomous sovereigns, that is, they retain all power that is not “inconsistent with their status” as “conquered and dependent” nations. United States v. Enas, No. 99-10049, 2001 WL 726669 at *3 (9th Cir. June 29, 2001) (en banc), (quoting Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 196, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978)) This kind of authority, referred to as “inherent”, Wheeler, 435 U.S. at 329, 98 S.Ct. 1079, or “retained”, id. at 327, 98 S.Ct. 1079; Duro v. Reina, 495 U.S. 676, 679, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990), is the power tribes need to control their own internal relations and to preserve their own unique customs and social order, Duro, 495 U.S. at 685-86, 110 S.Ct. 2053. [¶ 8] On the other hand, “[t]he sovereignty that Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance.” Wheeler, 435 U.S. at 323, 98 S.Ct. 1079; see also United States v. Wadena, 152 F.3d 831, 843 (8th Cir.1998), cert. denied, 526 U.S. 1050, 119 S.Ct. 1355, 143 L.Ed.2d 517 (1999). When Congress bestows additional power upon a tribe, Congress has delegated an aspect of the government’s own sovereignty to the tribe. Duro, 495 U.S. at 687, 110 S.Ct. 2053; Wheeler, 435 U.S. at 328, 98 S.Ct. 1079; Oliphant, 435 U.S. at 208, 98 S.Ct. 1011. [¶ 9] The distinction between inherent and delegated power is critical for purposes of determining a double jeopardy violation. When an Indian tribe acts pursuant to its inherent power, the dual sovereignty doctrine permits federal and tribal prosecutions for the same offense. Enas, 255 F.3d 662, 666-67. But when a tribe acts based on power delegated to it by Congress, the Double Jeopardy Clause prohibits duplicative tribal and federal prosecutions. Id. [¶ 10] The paramount question here is whether CRST, in prosecuting Archam-bault, was exercising its inherent power or power that was delegated to it by Congress. If the former is true, the federal prosecution can continue; if the latter is the case, the assault charge must be dismissed as violative of the Double Jeopardy Clause. Before this question can squarely be addressed, Duro and the 1990 amendments to the Indian Civil Rights Act (ICRA) and other relevant cases, from both the Eighth Circuit and elsewhere, must be examined. Y. [¶ 11] In 1978, the Supreme Court held that the Double Jeopardy Clause did not preclude the government from successively prosecuting a tribal member defendant under the Major Crimes Act. Wheeler, 435 U.S. at 326, 98 S.Ct. 1079. The Supreme Court’s holding was based on the notion that Indian tribes constitute separate sovereigns for purposes of the Double Jeopardy Clause. Id. at 329-30, 98 S.Ct. 1079. The Court reasoned that the exercise of criminal authority over tribal members was an aspect of non-divested inherent tribal authority and was not based on delegated federal authority. Id. [¶ 12] Scarcely more than two weeks before Wheeler was handed down, the Supreme Court decided Oliphant In Oli-phant, the Court determined that Indian tribes could not exercise criminal jurisdiction over non-Indians in the absence of an affirmative delegation of such power by Congress. 435 U.S. at 208, 98 S.Ct. 1011. According to the Court, upon their incorporation into the United States, Indian tribes came under and were subject to the sovereignty of the United States and their rights to complete sovereignty, as independent nations, were diminished. Id. at 208-09, 98 S.Ct. 1011. [¶ 13] In Duro, the Supreme Court extended the judicial divestiture of sovereignty enunciated in Oliphant, holding that an Indian tribe could not assert jurisdiction over a defendant who was an Indian but not a tribal member. In reaching this conclusion, the Court observed that the power to prosecute non-member Indians “was a power necessarily surrendered by the tribes in their submission to the overriding sovereignty of the United States.” 495 U.S. at 693, 110 S.Ct. 2053. Stated another way, tribes had no inherent power to prosecute non-member Indians. [¶ 14] With this trio of cases, the paradigm had been completed: the inherent powers of Indian tribes included only those required for internal self-governance and in the absence of authority delegated by Congress, the sovereign rights of tribes to prosecute criminal offenders did not go beyond tribal members. [¶ 15] Congress reacted swiftly to the Duro decision by passing the 1990 amendments to the ICRA. The amendments redefined the statute’s definition of “powers of 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). It also created a definition of “Indian”, as “any person who would be subject to the jurisdiction of the United States as an Indian under section 1153 of Title 18 if that person were to commit an offense listed in that section in Indian country to which that section applies.” 25 U.S.C. § 1301(4). [¶ 16] These amendments reflect an attempt by Congress to “legislatively override” Duro by expressly recognizing and affirming that an Indian tribe’s “inherent” sovereign status has always included criminal jurisdiction over non-member Indians. This intention is plain from the text of the amendments and their legislative history. See, e.g., 137 Cong.Rec. H2988-01 (May 14, 1991), 1991 WL 77806 (statement of Rep. Miller) (“[T]his bill recognizes an inherent tribal right which always existed. It is not a delegation of authority but an affirmation that tribes retain all rights not expressly taken away.”); H.R.Conf.Rep. No. 102-261, at 3 (1991), reprinted in 1991 U.S.C.C.A.N. 379 (“The Committee of Conference is clarifying an inherent right which tribal governments have always held and was never questioned until the recent Supreme Court decision of Duro v. Reina, [495 U.S. 676,] 110 S.Ct. 2[0]53[, 109 L.Ed.2d 693] (1990).”); see also, Mousseaux v. United States Commissioner of Indian Affairs, 806 F.Supp. 1433, 1442-43 (D.S.D.1992), aff'd in part and remanded in part on other grounds, 28 F.3d 786 (8th Cir.1994). [¶ 17] It appears that Duro and the 1990 amendments to the ICRA are in direct conflict. The critical question, therefore, becomes whether Congress, in the face of Duro and the Supreme Court’s pronouncements therein, had the authority to pass the amendments and clarify its vision of tribal sovereignty. VI. [¶ 18] Before delving into this separation of powers thicket, it is appropriate that consideration be given to the decisions of other courts which have discussed the interplay between Duro and the 1990 amendments and the “inherent” versus “delegated” power issue. [¶ 19] In United States v. Weaselhead, 36 F.Supp.2d 908 (D.Neb.1997), affirmed by an equally divided court, 165 F.3d 1209 (8th Cir.) (en banc), cert. denied, 528 U.S. 829, 120 S.Ct. 82, 145 L.Ed.2d 70 (1999), the Eighth Circuit wrestled with the same issue that confronts this Court. The case began in the District of Nebraska, where the defendant, an enrolled member of the Blackfoot Indian Tribe of Montana, sought to dismiss a federal indictment on double jeopardy grounds because he had previously been prosecuted and convicted in Winnebago Tribal Court. The district court held that the Winnebago Tribe exercised its inherent sovereignty when it prosecuted the defendant and that the subsequent federal prosecution of him did not violate the Double Jeopardy Clause. 36 F.Supp.2d at 915. [¶20] A divided panel of the Eighth Circuit reversed. The Weaselhead majority determined that what sovereign powers Indian tribes inherently possess is a constitutional matter that must be decided by the Supreme Court and not Congress: We conclude that ascertainment of first principles regarding the position of Indian tribes within our constitutional structure of government is a matter ultimately entrusted to the [Supreme] Court and thus beyond the scope of Congress’s authority to alter retro-actively by legislative fiat. Fundamental, ab initio matters of constitutional history should not be committed to “[s]hifting legislative majorities” free to arbitrarily interpret and reorder the organic law as public sentiment veers in one direction or another. Prior to the post-Duro amendments], criminal jurisdiction over non-member Indians did not exist, as it had been “necessarily surrendered by tribes in their submission to the overriding sovereignty of the United States.” Although Congress presumably acted within its power in delegating criminal jurisdiction over non-member Indians to the tribes, it was beyond Congress’s power to declare existent a non-sovereignty based jurisdiction that the Court has declared to be nonexistent. 156 F.3d at 824 (citations omitted). [¶ 21] Judge Morris Sheppard Arnold dissented. In Judge Arnold’s view, “the question of what powers Indian tribes inherently possess ... has always been a matter of federal common law,” and as such, “Congress has the power to expand and contract the inherent sovereignty that [ ] tribes possess because it has legislative authority over federal common law.” 156 F.3d at 825. [¶ 22] The Weaselhead panel decision was later vacated and the Eighth Circuit, sitting en banc, affirmed the district court’s decision by an evenly-divided vote. 165 F.3d at 1209. [¶ 23] Just recently, the en banc court in Enas, considered the issue presented in this case and unanimously held that the Double Jeopardy Clause was not transgressed by the federal prosecution of a non-member Indian. 255 F.3d 662, 675-76, 682-83. The Enas court concluded that (1) Congress had the power to determine that tribal- jurisdiction over nonmember Indians was inherent, (2) acting under the 1990 amendments to the ICRA, the White Mountain Apache Tribe prosecuted the defendant pursuant to its own inherent power and (3) the federal prosecution could proceed because it was based on a separate power source, and the dual sovereignty doctrine applied and permitted successive tribal and federal prosecutions of the defendant. .Id. at 675-76. Four judges concurred in the result, believing that there was no need to engage in a separation of powers analysis because the Apache Tribe prosecuted the defendant, pursuant to its own inherent sovereign authority. Id. at 675-83. VII. This Court agrees with the reasoning and rationale of the Court in Enas and that of Judge Arnold’s dissenting opinion in Weaselhead. It is axiomatic that when Congress and a court disagree and the issue is a constitutional one, the court’s decision prevails. See Cooper v. Aaron, 358 U.S. 1, 18, 78 S.Ct. 1401, 3 L.Ed.2d 5, 19 (1958); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). In contrast, when Congress and a court are at odds over a statutory interpretation issue, Congress has the last word. M. Solimine & J. Walker, The Next Word: Congressional Response to Supreme Court Statutory Decisions, 65 Temple L.Rev., 425, 454-58 (1992) (listing 50 examples); see also, A. Mikva & Bleich, When Congress Overrules the Court, 79 Cal L.Rev. 729 (1991) (providing an historical overview). The Court has read and re-read Duro and is convinced that it is not a constitutional decision, but rather, like its two predecessors, Oliphant and Wheeler, is a decision based on federal common law. Although Duro is replete with references to sovereignty — a word that has constitutional implications — the decision does not rest on any constitutional provision. Enas, 255 F.3d at 673-74. Nor does Duro state or even intimate that its holding is compelled by or rooted in any constitutional precepts. Id. If Duro and its progeny, Oliphant and Wheeler, had constitutional dimensions which constrain Congress’s legislative authority, it is not readily apparent from the opinions themselves. Surely if these decisions were constitutionally based, the Supreme Court would have said so or at least mentioned the Constitution in its writings. Id. Nor is Duro a statutory construction case. Although the Supreme Court in Duro did refer to several statutes in the course of its jurisdictional analysis, see e.g., 495 U.S. at 691, 110 S.Ct. 2053, it was not called upon and did not have to interpret any particular statute. This case, unlike most others, involves a dispute between the judicial and legislative branches of government, not over a constitutional or statutory issue, but rather, a matter of common law based on history. Accepting, as the Court does, that the sovereignty issue decided in Duro was a matter of federal common law, see Enas, 255 F.3d at 674-75, Weaselhead, 156 F.3d at 825, (M.S.Arnold, J., dissenting), who then holds the trump card? The answer is clear: within the realm of federal common law — and the federal common law of Indian tribes — Congress is supreme. 255 F.3d at 674-75 (citing Morton v. Mancari, 417 U.S. 535, 551-52, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974)). Accordingly, Congress had the authority and acted within its bounds when it passed into law the 1990 amendments to the ICRA. As the above discussion indicates, had the Court concluded that the issue before it was one involving constitutional history, its recommendation to the District Court would most certainly be different. Indeed, there can be little doubt that a disgruntled Congress may not overrule, expressly or by the implication, a constitutional decision by retroactively modifying, through “clarifying legislation”, the history upon which it is based. Id. For the reasons already discussed, this is not the situation present here. VIII. [¶ 30] This Court concludes that (1) the CRST proceeded under its inherent sovereignty, not under one that Congress delegated, in exercising jurisdiction over Archambault and (2) under the dual sovereignty doctrine, the government was not barred by the Double Jeopardy Clause from prosecuting him, following his tribal convictions, for assault in federal court. IX. [¶ 31] Archambault alternatively claims that 18 U.S.C. § 1153 and 25 U.S.C. §§ 1301-03 deny him due process and equal protection under the law. He argues that these statutory provisions are discriminatory because they “place nonmember Indians in jeopardy of tribal criminal prosecution and subsequent federal prosecution for the same act.” Docket No. 30 at 8. Archambault maintains the two sets of statutes “unreasonably and intentionally employt ] a racial classification that imposes a severe burden upon nonmember Indians by granting dual prosecution in both tribal and federal courts while not granting the same jurisdiction [to] non-Indians.” Docket No. 27 at 3. [¶ 32] Archambault’s Fifth Amendment claims, however, have been addressed and rejected by the Supreme Court and other courts and therefore are wholly without merit. See United States v. Antelope, 430 U.S. 641, 642-50, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977); Fisher v. District Court, 424 U.S. 382, 390-91, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976); Morton, 417 U.S. at 551-55, 94 S.Ct. 2474; see also, United States v. Eagleboy, 200 F.3d 1137, 1138-40 (8th Cir.1999); United States v. Juvenile Male, 864 F.2d 641, 645-46 (9th Cir.1988); Kills Crow v. United States, 451 F.2d 323, 325-27 (8th Cir.1971), cert. denied, 405 U.S. 999, 92 S.Ct. 1262, 31 L.Ed.2d 467 (1972); United States v. Banks, 368 F.Supp. 1245, 1248 (D.S.D.1973). X. [¶ 33] Finally, Archambault contends that 25 U.S.C. § 1301 is an unconstitutional bill of attainer. Docket No. 30 at 7. At oral argument, he conceded though, that his bill or attainer contention was tied to and dependent on his due process and equal protection claims. H.Tr. 2-3. As already demonstrated, these claims are not cognizable. This being the case, Archam-bault’s contention, that § 1301 violates the ban on bills of attainer, must likewise fall by the wayside. [¶ 34] The contention must fail for yet another reason as well. Simply stated, § 1301 is not a bill of attainer under Article I, § 9 of the Constitution, [¶ 35] A bill of attainer is a law that legislatively determines guilt and inflicts punishment upon named individuals, see e.g., United States v. Lovett, 328 U.S. 303, 106 Ct.Cl. 856, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946), or readily identifiable groups, see e.g., Ex parte Garland, 71 U.S. (4 Wall) 333, 18 L.Ed. 366 (1866), “without provision of the protections of a judicial -trial.” Selective Service System v. Minn. Public Interest Research Group, 468 U.S. 841, 846-47, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984); Nixon v. Administrator of General Services, 433 U.S. 425, 468, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977); see also Planned Parenthood of Mid-Missouri v. Dempsey, 167 F.3d 458, 465 (8th Cir.1999). In passing a bill of attainer, Congress departs from its constitutional role of providing general rules for the government of society and usurps the judicial role by determinat-ing guilt legislatively. Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 3 L.Ed. 162 (1810). The danger of such a law is, of course, that it deprives the accused of the protections afforded by judicial process. [¶ 36] Archambault is not the victim of a bill of attainer. Section 1301, a four-term definitions statute, does not punish Ar-chambault without an adjudication of guilt. Selective Service, 468 U.S. at 852-53, 104 S.Ct. 3348; United States v. Van Horn, 798 F.2d 1166, 1168 (8th Cir.1986). Nor is the statute intended to further a punitive purpose or otherwise codify a desire, on the part of Congress, to punish non-member Indians like Archambault. Selective Service, 468 U.S. at 853-56, 104 S.Ct. 3348; Planned Parenthood, 167 F.3d at 465. The statute therefore easily passes constitutional muster and provides Archambault with no grounds whatsoever for dismissal of his case. XI. [¶ 37] Based on the foregoing and in accordance with 28 U.S.C. § 636(b)(1), this Court hereby [¶ 38] RECOMMENDS that Archam-bault’s Motion for Dismissal, Docket No. 26, be denied in its entirety and with prejudice. ■ [¶ 39] Dated this 13th day of July, 2001, at Pierre, South Dakota. NOTICE Failure to file written objections to the within and foregoing Report and Recommendations for Disposition within ten (10) days from the date of service shall bar an aggrieved party from attacking such Report and Recommendations before the assigned United States District Judge. See 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72. SUPPLEMENTAL REPORT AND RECOMMENDATION FOR DISPOSITION OF DEFENDANT’S MOTION FOR DISMISSAL I. [¶ 1] On July 26, 2001, the District Court remanded the instant case for further proceedings pursuant to 28 U.S.C. § 636(b)(1)(C). Docket No. 46. In its Remand Order, the District Court directed that this Court consider the case, and in particular, the Motion for Dismissal filed by defendant, James Archambault, also known as James Skunk (Archambault), in light of the United States Supreme Court’s recent decision in Nevada v. Hicks, — U.S. -, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001). The District Court also directed that Archambault be afforded the opportunity to offer additional evidence purporting to show a “dependent relationship” between the Cheyenne River Sioux Tribe, its tribal court and law enforcement, and plaintiff, United States of America (government). In accordance with the District Court’s directives, this Court has permitted the parties to brief and argue the Hicks case and has allowed both Archam-bault and the government to supplement the record with additional or rebuttal evidence. II. [¶ 2] This Court' has carefully reviewed Hicks, including the various concurring opinions thereof, and believes that it does not control the double jeopardy claim raised by Archambault in his Motion and that the Court’s reasoning and analysis with respect to this claim, set forth at pages 2-9, ¶¶ III-VIII of the Report and Recommendation, Docket No. 35, should be reaffirmed, with one exception. [¶ 3] In Hicks, the United States Supreme held that a Nevada tribal court did not have jurisdiction over civil claims against state officials who entered tribal land to execute a search warrant against a tribal member suspected of having violated state law while off the reservation. 533 U.S. at - - -, 121 S.Ct. at 2309-13. Applying the all too familiar principles of Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), the Supreme Court determined, among other things, that: (1) tribal authority to regulate state officers executing process relating to state offenses that occurred off the reservation was not essential to tribal self-government or internal relations — to “the right to make laws and be ruled by them”; and (2) Congress did not strip states of their inherent jurisdiction on reservations with regard to off-reservation violations of state criminal laws. Id. at 2313. Hicks did not address, much less resolve, the ultimate source of authority by which tribal courts exercise jurisdiction over nonmember Indians who commit crimes while on the reservation or whether the government, by virtue of the Double Jeopardy Clause, is barred from prosecuting a nonmember Indian, following his tribal convictions, for an equivalent offense in federal court. Instead, the Court’s holding was “limited to the question of tribal-court jurisdiction over state officers enforcing state law”, and explicitly left “open the question of tribal-court jurisdiction over nonmember defendants in general”. Id. at 2309 n. 2; see also, id. at 2319 (Souter, J. concurring); id. at 2324 (Ginsburg, J. concurring). [¶ 4] In addition to Hicks, the Court has read and considered Atkinson Trading Co. v. Shirley, 532 U.S. 645, 121 S.Ct. 1825, 149 L.Ed.2d 889 (2001), a recent case cited to by the Hicks Court. In Atkinson, the Supreme Court, applying the Montana framework, held that an Indian tribe lacked authority to impose a hotel occupancy tax upon nonmember guests for activity that occurred on non-Indian fee land located within reservation boundaries. 121 S.Ct. at 1832-35. In doing so, the Court found that the tribe failed to establish that the occupancy tax was commensurately related to any consensual relationship or necessary to vindicate the political integrity, economic security, health or welfare of the tribe and therefore was unlawful. Id. at 1834-35. Atkinson, like Hicks, did not broach, much less decide, the dual sovereignty/double jeopardy issue which is the gravamen of Arehambault’s Dismissal Motion. [¶ 5] Inasmuch as Hicks and Atkinson are factually and legally distinguishable from the case at hand, they do not govern, much less change, the Court’s earlier Report and Recommendation. III. [¶ 6] Yet, insofar as these cases are precedentially instructive, they do not detract from or otherwise weaken, the Court’s prior conclusion that the government is not precluded, by the Double Jeopardy Clause, from going forward with its prosecution against Archambault. [¶ 7] Montana recognizes that a tribe may retain inherent power to exercise jurisdiction over a nonmember when his conduct “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” 450 U.S. at 566, 101 S.Ct. 1245. These interests are plainly implicated where, as here, a nonmember Indian engages in violent criminal activity within the boundaries of a tribe’s own reservation. Without question, the apprehension, prosecution and punishment of such an offender are essential attributes of tribal sovereignty and necessary, if not crucial, to protect the health and safety of tribal members. Indeed, a tribe’s authority to prosecute violent domestic crimes, committed by nonmember Indians against its own members while on the reservation, has always been an inherent facet of tribal self-government and an integral part of the tribe’s sovereign duty to “preserve and protect” its people and the homeland. See Enas, 255 F.3d at 66<U65, 675 (holding that a tribe had the inherent authority to prosecute a nonmember Indian for assaulting a tribal member while on the reservation and that federal assault charges, stemming from the same incident and filed after the nonmember’s tribal assault conviction, were based on a separate power source and therefore ■ did not violate the Double Jeopardy Clause); 25 U.S.C. § 1301(2) (expanding the definition of “powers of self government” and, in the process, recognizing and affirming “the inherent power of Indian tribes ... to exercise criminal jurisdiction over all Indians”); see also, Mousseaux v. United States, 806 F.Supp. 1433, 1441-43 (D.S.D.1992), aff'd in part and remanded in part on other grounds, 28 F.3d 786 (8th Cir.1994). [¶ 8] The Supreme Court in Montana and other cases also recognized that tribes retain sovereign interests in activities that occur on land owned and controlled by a tribe, especially when these interests involve violations of tribal law and injuries to the tribe’s own members in a domestic relations setting. Hicks, 533 U.S. at -, -, 121 S.Ct. at 2310, 2316 (acknowledging that tribal ownership is a significant factor in the Montana analysis that may be dispositive unless outweighed by other interests); Strate v. A-1 Contractors, 520 U.S. 438, 454-55, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997) (agreeing “that tribes retain considerable control over nonmember conduct on tribal land” but concluding that because the defendant’s alleged tortious conduct occurred on land that was equivalent to “alienated non-Indian land” tribal court jurisdiction was lacking); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137, 142, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982) (tribe has taxing authority over tribal lands leased by nonmembers); Montana, 450 U.S. at 557, 101 S.Ct. 1245 (a tribe may prohibit or regulate the activities of nonmembers on land belonging to the tribe or held. by the United States in trust for the tribe); see also, Atkinson, 121 S.Ct. at 1831-32 (a tribe’s inherent power to tax does not extend to nonmember activity occurring on non-Indian fee land). A tribe’s authority to punish Indian nonmembers for criminal conduct perpetrated against tribal members on tribal property is essential to tribal self-government and/or internal relations given the multitude of nonmember Indians who live on reservations and the number and frequency of crimes that occur in this context each day. See and compare Hicks, 533 U.S. at -, 121 S.Ct. at 2316 (tribal self-government and internal relations are not threatened or otherwise affected by “a narrow category of outsiders”); Atkinson, 121 S.Ct. at 1834-35 (operation of a hotel on non-Indian fee land did not endanger the tribe’s political integrity). [¶ 9] Although the Supreme Court in Duro, temporarily limited the reach of tribal authority over nonmember Indians in criminal cases, Congress, acting pursuant to its plenary power under the Indian Commerce Clause, quickly rejected the Court’s holding when it amended the Indian Civil Rights Act (ICRA) on October 24, 1990, to acknowledge, confirm and prospectively restore the inherent authority of Indian tribes over all Indians, including nonmembers. It is beyond dispute that Congress is empowered to “deal with the special problems [facing] Indians” and to “legislate on [their] behalf, using its authority under the Indian Commerce Clause”. Morton v. Mancari, 417 U.S. 535, 551-52, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974); see also, Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989) (“the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs”). More importantly, Congress has the power to alter inherent sovereignty that Indian tribes possess because it has legislative authority over federal common law. Enas, 255 F.3d at 673-75; see also, Milwaukee v. Illinois and Michigan, 451 U.S. 304, 313-14, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981) (“federal common law is ‘subject to the paramount authority of Congress’ ”); Washington v. Confederated Bands & Tribes of Yakima Nation, 439 U.S. 463, 501, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979) (“[i]t is well established that Congress, in the exercise of its plenary power over Indian affairs, may restrict the retained sovereignty of the Indian tribes”). Congress can also recognize tribal authority without being the source of that authority. See United States v. Wheeler, 435 U.S. 313, 328, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). [¶ 10] Here, the CRST prosecuted Ar-chambault pursuant to its own inherent authority. As discussed in the Court’s initial Report and Recommendation, the dual sovereignty doctrine allows two independent sovereigns to prosecute a lawbreaker separately for the same conduct without offending the Double Jeopardy Clause. See Heath v. Alabama, 474 U.S. 82, 88-91, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985); Wheeler, 435 U.S. at 316-32, 98 S.Ct. 1079; see also, United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 (1922) (“an act denounced as a crime by both national and state sover-eignties is an offense against the peace and dignity of both and may be punished by each”). Because the Tribe and the federal government are separate sovereigns for double jeopardy purposes, the dual sovereignty doctrine permits successive tribal and federal prosecutions of Archambault for the domestic violence/assault offenses. Enas, 255 F.3d at 664-75; see also, id. at 682-83 (Pregerson, J. concurring). IV. [¶ 11] This result is consistent with Congress’s intent when it enacted the 1990 amendments. Legislative history of these amendments evinces a clear desire on the part of Congress for § 1301 to serve as confirmation of the tribe’s pre-existing jurisdiction and not as a delegation of the same. Recognizing the inherent sovereignty of CRST gives full effect to and carries out this congressional intent. [¶ 12] Such a reading of the 1990 amendments is also consistent with other provisions of the ICRA. For example, under the ICRA, tribal courts have limited criminal jurisdiction and can only sentence criminal defendants to one year of imprisonment, a $5,000 fíne, or both. See 25 U.S.C. § 1302(7). If the 1990 amendments were interpreted as an affirmative delegation of power to tribal courts, then the Double Jeopardy Clause would only permit defendants to be prosecuted once. In such a case, a nonmember Indian who brutally murders his tribal member girlfriend while on reservation property could race into tribal court, plead guilty and be sentenced as a misdemeanant, and avoid federal prosecution. By the same token, a tribal member, who commits the same crime would not be shielded by the Double Jeopardy Clause and could be prosecuted by tribal and federal authorities and sentenced much more harshly. It is questionable whether Congress really intended for this to happen. See Wheeler, 435 U.S. at 331, 98 S.Ct. 1079 (stating that “[w]ere the tribal prosecution held to bar the federal one, important federal interests in the prosecution of major offenses on Indian reservations would be frustrated”). [¶ 13] Finally, the result reached herein is consistent with federal criminal statutes relating to Indians. The Federal Enclaves Act (also known as the General Crimes Act), codified at 18 U.S.C. § 1152, assumes that tribes have the power to punish any Indian, member or nonmember. Significantly, the Act expressly excludes from its reach “any Indian committing any offense in the Indian country who has been punished by the local law of the tribe.” (emphasis added). The Major Crimes Act, 18 U.S.C. § 1153, likewise makes no distinction between member and nonmember Indians. This Act gives fe