State of Iowa v. Christopher Lee Cungtion, Jr.

IN THE SUPREME COURT OF IOWA
No. 20–0409
Submitted November 16, 2021—Filed January 28, 2022
STATE OF IOWA,
Appellee,
vs.
CHRISTOPHER LEE CUNGTION, JR.,
Appellant.
Appeal from the Iowa District Court for Tama County, Mitchell Turner
(motion to dismiss) and Fae Hoover-Grinde (sentencing), Judges.
The defendant appeals the district court’s jurisdiction to enter judgment
involving conduct in Indian country. AFFIRMED.
Oxley, J., delivered the opinion of the court, in which Christensen, C.J.,
and Appel, Waterman, Mansfield, and McDonald, JJ., joined. McDermott, J.,
filed a special concurrence.
Martha J. Lucey, State Appellate Defender, and Bradley M. Bender
(argued), Assistant Appellate Defender, and Peter Stiefel (until withdrawal),
Victor, for appellant.
2
Thomas J. Miller, Attorney General, and Aaron Rogers (argued), Assistant
Attorney General, for appellee.
Sean R. Berry, Acting United States Attorney, Lisa C. Williams, Assistant
United States Attorney, and Ann O’Connell Adams (argued), Attorney, U.S.
Department of Justice, for amicus curiae United States.
Joshua A. Canterbury, Assistant Attorney General, and Christopher M.
Nydle, Lead Prosecutor, for amicus curiae Sac & Fox Tribe of the Mississippi in
Iowa.
3
OXLEY, Justice.
In 1948, Congress gave the State of Iowa criminal jurisdiction over offenses
committed by or against “Indians”1 on the Meskwaki Settlement near Tama. In
2018, Congress took that jurisdiction back. Because Congress’s repeal of the
state’s jurisdiction did not affect criminal cases pending at the time of the repeal,
we affirm the judgment against the defendant.
I.
Christopher Lee Cungtion, Jr. got into an altercation with a group of people
in the parking lot of the Meskwaki Bingo Casino and Hotel in the early morning
hours of July 30, 2017. Cungtion hit one man in the face with a Hennessy
whiskey bottle, threw the bottle at his car, and then drove a vehicle towards him.
The man jumped out of the way when Cungtion swerved at him. Cungtion
narrowly missed the man, sideswiping his car instead.
On November 30, 2018, the State charged Cungtion with intimidation with
a dangerous weapon with intent to injure, willful injury resulting in bodily injury,
assault with a dangerous weapon, and driving while barred. Cungtion entered
an Alford2 plea to the charges. He received deferred judgments on the
intimidation with a dangerous weapon and willful injury resulting in bodily
injury charges. He also received concurrent suspended two-year prison
sentences with two-year terms of supervised probation for the other charges.
1As in State v. Stanton, we “use[] terms such as ‘Indian country,’ and demarcations such
as ‘Indian’ and ‘non-Indian’ only for purposes of consistency with the existing legal framework
and nomenclature.” 933 N.W.2d 244, 247 n.1 (Iowa 2019).
2See North Carolina v. Alford, 400 U.S. 25 (1970).
4
In July 2019, Cungtion assaulted his girlfriend, quit his job, and smoked
marijuana, all in violation of his probation. On July 22, the Tama County
Attorney filed an application for entry of judgment on the counts for which
Cungtion had previously received deferred judgments.
All of this seems fairly routine except for one critical fact—Cungtion is not
an Indian, but his victim is, which means the State’s ability to prosecute
Cungtion under state law depends solely on congressional authorization. State
v. Stanton, 933 N.W.2d 244, 249 (Iowa 2019) (explaining Congress granted Iowa
criminal jurisdiction “over offenses committed by or against Indians” on the
Meskwaki Settlement when it enacted the Act of June 30, 1948, ch. 759, 62 Stat.
1161 (1948 Act)). After the court granted Cungtion deferred judgments in
November 2018 but before the county attorney sought entry of judgment on
those counts in July 2019, Congress repealed the 1948 Act that had given Iowa
criminal jurisdiction over the Meskwaki Settlement. The repeal was effective
December 11, 2018. Act of Dec. 11, 2018, Pub. L. No. 115–301, 132 Stat. 4395(Public Law 115–301); see also Stanton, 933 N.W.2d at 249.
Cungtion moved to dismiss the application for entry of judgment for lack
of jurisdiction, arguing that Iowa had lost jurisdiction over the counts for which
he received deferred judgments. Without jurisdiction, the court could not revoke
his probation or enter judgment on the deferred counts. The district court denied
Cungtion’s motion, concluding that the State retained jurisdiction over acts
committed before the repeal went into effect. The district court also rejected
Cungtion’s argument that the State lacked jurisdiction because he violated his
5
probation after the repeal, reasoning that Cungtion had committed the crimes
for which he received the deferred judgments before December 11, 2018.
The district court revoked the deferred judgments and found Cungtion
guilty on the willful injury resulting in bodily injury charge, imposed an
indeterminate five-year prison term, which it suspended, and placed him on
probation for five years. The court amended Cungtion’s probation terms on the
intimidation with a dangerous weapon charge. For the other charges, the court
extended the probation terms to November 30, 2021.
Cungtion appealed, and we retained the appeal. The only issue is whether
the district court had jurisdiction to enter judgment against Cungtion, which we
review for errors at law. See Stanton, 933 N.W.2d at 247.
II.
This case marks the second time in two years we have confronted the
effects of Congress’s 2018 repeal of the 1948 Act. In State v. Stanton, we held
that Public Law 115–301’s repeal had no effect on the state’s jurisdiction to
prosecute crimes on the Meskwaki Settlement involving non-Indians. 933
N.W.2d at 249–50. That’s because the state’s criminal jurisdiction over non-
Indians existed before the 1948 Act, so its repeal left that jurisdiction untouched.
Id. But with the repeal of the 1948 Act, the state no longer has jurisdiction over
criminal acts committed by or against Indians on the Meskwaki Settlement.
What about acts committed before the repeal? May the State finish prosecuting
charges that were pending on December 11, 2018? Because Congress did not
provide otherwise, we conclude it can.
6
A.
This appeal involves the State’s ability to impose its criminal laws in Indian
country, so we must consider the statutory repeal against the backdrop of Indian
law. See McClanahan v. State Tax Comm’n of Ariz., 411 U.S. 164, 172 (1973); Sac
& Fox Tribe of the Miss. in Iowa v. Licklider, 576 F.2d 145, 147 (8th Cir. 1978)
(“Federal Indian law is a subject that cannot be understood if the historical
dimension of existing law is ignored.” (quoting United States ex rel. Condon v.
Erickson, 478 F.2d 684, 686 (8th Cir. 1973))). Indian tribes are semi-independent
sovereigns with inherent authority over their people and their land. Congress
has broad power, derived from the Constitution, to legislate with respect to
Indian tribes, authority “consistently described as ‘plenary and exclusive.’ ”
United States v. Lara, 541 U.S. 193, 200 (2004). A state has no authority to
enforce its criminal laws over conduct involving Indians in Indian country unless
Congress provides it. A state’s criminal jurisdiction is wholly dependent on, and
strictly limited by, the statutory grant of such authority from Congress. See
Tyndall v. Gunter, 840 F.2d 617, 619 (8th Cir. 1988) (citing Washington v.
Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 470–71
(1979)) (“[I]t is settled that the federal government may grant to the states the
authority to regulate matters involving Indians, including criminal offenses.”). It
is also important to recognize that Congress authorized state criminal
jurisdiction involving different tribes in different states at different times. See
Robert T. Anderson, Negotiating Jurisdiction: Retroceding State Authority over
Indian Country Granted by Public Law 280, 87 Wash. L. Rev. 915, 928–29 (2012)
7
[hereinafter Anderson] (“Congress has used its power under the Indian
Commerce Clause to authorize the exercise of state jurisdiction in haphazard
fashion.”). We must therefore carefully consider congressional action as it applies
to the specific state and tribe at issue.
As we explained in Stanton, Congress conferred criminal jurisdiction on
the State of Iowa when it passed the 1948 Act. 933 N.W.2d at 249. The state’s
jurisdiction was concurrent with federal jurisdiction over conduct covered by the
Indian Major Crimes Act, see Negonsott v. Samuels, 507 U.S. 99, 105 (1993)
(holding the Kansas Act, which granted similar authority to Kansas as given to
Iowa under the 1948 Act, “confer[red] only concurrent ‘legislative’ jurisdiction on
the State to define and prosecute similar offenses”), and also concurrent with the
Tribe’s retained inherent authority, see 25 U.S.C. § 1301(2) (recognizing and
affirming the inherent power of Indian tribes to exercise criminal jurisdiction
over all Indians); see also Lara, 541 U.S. at 210. The 1948 Act was specific to
Iowa’s jurisdiction within the Meskwaki Settlement, similar to other legislation
granting jurisdiction to specific states concerning specific tribes. See, e.g.,
Vanessa J. Jimenez & Soo C. Song, Concurrent Tribal and State Jurisdiction
Under Public Law 280, 47 Am. U. L. Rev. 1627, 1656 n.163 (1998) (detailing
separate congressional grants of criminal jurisdiction to Kansas and New York
over crimes committed on all Indian reservations within their states and to North
Dakota over offenses committed by or against Indians on the Devils Lake Indian
Reservation).
8
In 1953, Congress passed 18 U.S.C. § 1162, commonly referred to as
Public Law 280, addressing jurisdiction over Indian country in several states.
Public Law 280 required six states, and gave others the option, to unilaterally
exercise criminal jurisdiction over tribes in their respective states. See Act of Aug.
15, 1953, ch. 505, § 2, 67 Stat. 588 (codified at 18 U.S.C. § 1162). These laws
were enacted during the “termination era” as part of Congress’s efforts to remove
federal oversight and assimilate Indians into their state communities in the
1940s and 1950s. See Anderson, 87 Wash. L. Rev. at 930 (“In 1953 Congress . .
. set a goal of removing federal jurisdiction over Indian country and making
Indians subject to general state law as quickly as possible.”). Congress soon
concluded that forced assimilation was ineffective, revising Public Law 280 in
1968 to authorize state criminal jurisdiction only with the consent of the affected
tribes and to provide a mechanism for states to retrocede criminal jurisdiction
to the United States. Id. at 945–50. These Congressional amendments applied to
Public Law 280 states but not to the handful of states like Iowa whose
jurisdiction was conferred by separate legislation before the 1953 enactment.
See State v. Lasley, 705 N.W.2d 481, 489 (Iowa 2005) (“Iowa’s jurisdiction over
criminal offenses committed by or against Indians on the Tribe’s reservation
derives from [the 1948 Act] rather than Public Law 280.”).
State criminal jurisdiction over Indians in Indian country has been
criticized by many as improper interference in the powers of sovereign tribal
nations. See Kevin K. Washburn, Federal Criminal Law and Tribal Self-
Determination, 84 N.C. L. Rev. 779, 814, 819–20 (2006) (describing the history
9
of the federal government’s relationship with Indian tribes and the return in the
1980s to a federal philosophy favoring self-governance).
Indeed, during the last [now fifty] years, Congress, the courts, and
the executive branch have established a new federal Indian policy in
favor of the preservation and reinvigoration of tribal governments.
The federal government now respectfully recognizes Indian nations
as sovereigns and celebrates its “government-to-government”
relationship with tribes. Rather than seeking to destroy tribal
governments, expand federal power over tribes, or assimilate
individual Indians, the United States now officially encourages
“tribal self-determination” and “tribal self-governance.”
Id. at 783–84 (footnotes omitted).
One way tribes have reclaimed their sovereignty is by expanding their local
law enforcement and court systems. In 2002, the Sac & Fox Tribe of the
Mississippi in Iowa adopted a comprehensive Tribal Code governing a wide
variety of conduct within the tribe, including criminal conduct. See Sac & Fox
Tr. of Miss. Code (2002), https://www.meskwaki.org/constitution. In 2004,
“[t]he Tribal Court of the Sac and Fox Tribe was established by the Tribal
Council.” Att’y’s Process & Investigation Servs., Inc. v. Sac & Fox Tribe of the Miss.
in Iowa, 609 F.3d 927, 933 & n.4 (8th Cir. 2010). The Tribe now has its own
police force, prosecutors, a trial court, and an appellate court. Press Release, Sac
& Fox Tribe of the Miss. in Iowa, Sac & Fox Tribe of the Mississippi in Iowa
Welcomes Senate Passage of Proposed Bill, (Nov. 28, 2018),
https://www.meskwaki.org/press-release-sac-fox-tribe-of-the-mississippi-
in-iowa-welcomes-senate-passage-of-proposed-bill/ [https://perma.cc/93RX-
ZUVV].
10
Consistent with the modern view toward removing state criminal
jurisdiction over Indians in Indian country, in 2016 the Iowa General Assembly
enacted Iowa Code section 1.15A, tendering to the federal government “any and
all criminal jurisdiction” Iowa had over crimes committed “by or against Indians
on the Sac and Fox Indian settlement in Tama, Iowa.” 2016 Iowa Acts ch. 1050,
§ 1 (codified at Iowa Code § 1.15A (2017)). The statute provided that Iowa’s
criminal jurisdiction would cease “as soon as” the federal government assumed
and accepted the tender of jurisdiction. Id. This enactment reflected a joint effort
by the Tribe and the state to allow the Tribe to exercise criminal jurisdiction over
its people and its land without being subject to duplicative enforcement from the
state. In 2018, Congress passed Public Law 115–301 repealing Iowa’s criminal
jurisdiction over the Meskwaki Settlement.
B.
With this background, we turn to the issue before us—whether the State
can continue to prosecute criminal conduct that occurred prior to the effective
date of Public Law 115–301. The parties assert that state law controls the
outcome, characterizing Iowa Code section 1.15A (2017) as a retrocession of the
state’s jurisdiction, relying on Tyndall v. Gunter. See 840 F.2d at 618 (“[T]he
substance of what Nebraska retroceded, or more specifically, what Nebraska did
with the criminal cases pending in its courts, is a question of state law.”). That
was true for Nebraska because of the scheme Congress put in place. For
Nebraska and other Public Law 280 states, Congress expressly created a
mechanism for states to retrocede, or return, criminal jurisdiction over Indian
11
country to the federal government. See 25 U.S.C. § 1323(a) (“The United States
is authorized to accept a retrocession by any State of all or any measure of the
criminal or civil jurisdiction, or both, acquired by such State . . . .”). Nebraska
did just that on April 16, 1969, when it enacted legislation retroceding its
criminal jurisdiction pursuant to section 1323(a). See Tyndall, 840 F.2d at 618.
As the Tribe points out in its amicus brief, Congress expressly limited the
retrocession process to states that acquired their jurisdiction pursuant to Public
Law 280. 25 U.S.C. § 1323(a) (limiting retrocession to states that had received
jurisdiction “pursuant to the provisions of section 1162 of Title 18, section 1360
of Title 28, or section 7 of the Act of August 15, 1953 (67 Stat. 588), as it was in
effect prior to its repeal by subsection (b) of this section”). Tyndall’s focus on
whether Nebraska intended to retain jurisdiction over pending cases when it
passed legislation to accomplish retrocession is consistent with the statutory
scheme Congress set up in section 1323, which gives the state the ability to
retrocede all or only part of the jurisdiction it had acquired. See 840 F.2d at 618(recognizing that the validity of Nebraska’s retrocession was a matter of federal
law but the substance of what Nebraska retroceded was a matter of state law).
But Iowa is not a Public Law 280 state, and Congress has created no
statutory mechanism for Iowa to retrocede its criminal jurisdiction on the
Meskwaki Settlement to the federal government. Absent a congressionally-
sanctioned retrocession mechanism, Iowa Code section 1.15A is nothing more
than a statement of the state’s desire to relinquish its criminal jurisdiction.
12
Two years after the Iowa General Assembly passed section 1.15A, Congress
repealed the 1948 Act through Public Law 115–301. Having removed that
congressional authorization, Iowa lacks the ability to exercise criminal
jurisdiction within the Meskwaki Settlement. See McGirt v. Oklahoma, 140 S. Ct.
2452, 2467–68, 2478–79 (2020) (holding Oklahoma lacked criminal jurisdiction
over Indian’s conduct on Creek reservation where the reservation was never
terminated or disestablished despite Oklahoma’s long history of prosecuting
crimes on the land identified as the Creek reservation). Cungtion argues that all
state criminal jurisdiction Iowa held over the Meskwaki Settlement ended on
December 11, 2018, when Public Law 115–301 went into effect and Iowa lost the
ability to exercise its jurisdiction even over pending cases. But the repeal of the
1948 Act was done by legislative action, so whether that is true depends on what
that legislation provides. We apply ordinary rules of statutory construction to
determine whether Public Law 115–301 extinguished the State’s jurisdiction over
prerepeal conduct. Cf. State v. Macke, 933 N.W.2d 226, 234 (Iowa 2019) (citing
Hamdan v. Rumsfeld, 548 U.S. 557, 577 (2006), as recognizing that normal rules
of statutory construction may dictate that a statute was not intended to apply
retroactively).
Our inquiry begins with the text of Public Law 115–301. See Lamie v. U.S.
Tr., 540 U.S. 526, 534 (2004). The legislation provides:
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That the Act of
June 30, 1948, entitled “An Act to confer jurisdiction on the State of
Iowa over offenses committed by or against Indians on the Sac and
Fox Indian Reservation” (62 Stat. 1161, chapter 759) is repealed.
13
Public Law 115–301 (emphasis omitted). To fully understand the effect of Public
Law 115–301, we should also review the repealed 1948 Act, which states in its
entirety:
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assemble, That jurisdiction
is hereby conferred on the State of Iowa over offenses committed by
or against Indians on the Sac and Fox Indian Reservation in that
State to the same extent as its courts have jurisdiction generally over
offenses committed within said State outside of any Indian
reservation: Provided, however, That nothing herein contained shall
deprive the courts of the United States of jurisdiction over offenses
defined by the laws of the United States committed by or against
Indians on Indian reservations.
1948 Act (emphasis omitted). Public Law 115–301 did not address its effect on
acts committed prior to its effective date, and the 1948 Act did not contemplate
what would happen if it was ever repealed. The statutory text does not answer
our question.
Because we are construing federal legislation we must also consider
whether the federal savings statute, 1 U.S.C. § 109, applies to the statutory
repeal, see Dorsey v. United States, 567 U.S. 260, 273–75 (2012) (explaining that
the federal savings statute sets forth an “important background principle of
interpretation”); Great N. Ry. v. United States, 208 U.S. 452, 465 (1908)
(explaining that under the general principles of construction requiring that effect
be given to all the parts of a law, if possible, the predecessor general savings
provision should be read as part of a statutory repeal “unless, either by express
declaration or necessary implication, arising from the terms of the law as a
whole,” it is clear Congress did not intend it to apply). The general savings statute
provides:
14
The repeal of any statute shall not have the effect to release or
extinguish any penalty, forfeiture, or liability incurred under such
statute, unless the repealing Act shall so expressly provide, and
such statute shall be treated as still remaining in force for the
purpose of sustaining any proper action or prosecution for the
enforcement of such penalty, forfeiture, or liability.
1 U.S.C. § 109. “Congress enacted [section 109] to abolish the common-law
presumption that the repeal of a criminal statute resulted in the abatement of
‘all prosecutions which had not reached final disposition in the highest court
authorized to review them.’ ” Warden, Lewisburg Penitentiary v. Marrero, 417 U.S.
653, 660 (1974) (quoting Bradley v. United States, 410 U.S. 605, 607 (1973)). If
the savings provision applies, the repeal left in place the State’s jurisdiction over
pending cases. If it does not, the State lost jurisdiction. Id.Whether section 109 saves the State’s jurisdiction over Cungtion’s deferred
judgments turns on two questions. First, does the 1948 Act impose a penalty or
liability that section 109 requires to be treated as remaining in force? If it does,
did Congress either expressly or by necessary implication provide that the
penalty or liability so imposed is nonetheless released or extinguished?
By its plain language, section 109 treats certain repealed statutes as
remaining in effect for pending cases so that the repeal does not “release or
extinguish any penalty, forfeiture, or liability incurred under such statute.” 1
U.S.C. § 109 (emphasis added). The savings clause requires “such statute” to be
treated as remaining in force to sustain “any proper action or prosecution for the
enforcement of such penalty, forfeiture, or liability.” Id.; see United States v.
McNair, 180 F.2d 273, 274 (9th Cir. 1950) (“[S]ection [109] . . . extends . . . to
‘liabilities,’ and a liability or obligation to pay a tax imposed under a repealed
15
statute is not only within the letter, but the spirit and purpose of the provision.”
(emphasis added) (quoting Hertz v. Woodman, 218 U.S. 205, 217 (1910))). In
other words, section 109 identifies the penalty to be preserved as the penalty
incurred under the statute being repealed. See id. (“[W]e must take that general
saving clause into consideration as a part of the legislation involved in the
determination of whether a ‘liability’ had been incurred by the imposition of a tax
prior to the act that destroyed the law under which it had been imposed.”
(emphasis added)).
Cungtion urges a narrow reading of the general savings provision, arguing
it does not apply here because the 1948 Act does not itself impose any specific
penalty or liability. In the words of section 109, no penalty or liability is “incurred
under” the 1948 Act. Instead, it “conferred [criminal jurisdiction] on the State of
Iowa over offenses committed by or against Indians on the Sac and Fox Indian
Reservation.” 1948 Act. Rather than directly defining a specific liability or
penalty, the 1948 Act makes an individual like Cungtion, who commits an act in
Indian country against an Indian, subject to all of the state’s criminal laws. In
that sense, Cungtion only indirectly incurred liability “under” the 1948 Act when
he intimidated an Indian in Indian country with a dangerous weapon in violation
of Iowa Code section 708.6. Cungtion argues a narrow application is appropriate
when we consider “that the states are severely limited in exercising jurisdiction
over Indians within Indian country absent authorization by Congress.” Walker v.
Rushing, 898 F.2d 672, 673 n.3 (8th Cir. 1990). Further, the federal government
maintained concurrent jurisdiction over the Meskwaki Settlement, so no lawless
16
gap is created by applying the repeal retroactively. Cf. State v. Goham, 216
N.W.2d 869, 871 (Neb. 1974) (relying in part on the exclusivity of state
jurisdiction over Indian country to conclude Nebraska’s retrocession of criminal
jurisdiction over Indian country did not apply to pending actions, reasoning “that
the [Nebraska] Legislature did not intent to leave Indian country located in
Thurston County, Nebraska, as a lawless domain”). We consider how federal
courts have applied the federal savings provision in determining whether it
should apply here.
Most cases applying section 109 involve the amendment or repeal of
statutes imposing a specific liability or a specific criminal penalty. See, e.g.,
Dorsey, 567 U.S. at 272–73 (considering the general savings provision in
determining whether the Fair Sentencing Act of 2010, Pub. L. No. 111–220, 124
Stat. 2372, which reduced the crack-to-powder cocaine disparity from 100–to–1
to 18–to–1, applied to sentences imposed for conduct that predated the Act);
United States v. Klump, 536 F.3d 113, 120 (2d Cir. 2008) (applying section 109
in holding that defendant was properly sentenced to ten-year mandatory
minimum under former version of 18 U.S.C. § 924(c) in effect at time of
defendant’s conduct); United States v. Brown, 429 F.2d 566, 567 (5th Cir. 1970)
(applying section 109 in upholding conviction for violation of 15 U.S.C. § 902(e),
which was repealed between the commission of the offense and defendant’s
conviction). If this was all the authority we had, we might conclude that federal
courts do in fact apply the savings provision narrowly.
17
That section 109 has been applied to the repeal of statutes that directly
impose a specific penalty does not in itself mean it cannot be applied to the repeal
of statutes that indirectly do so. Other contexts in which the savings provision
has been applied reveal a broader application. For example, even though it is
phrased in terms of “[t]he repeal of any statute,” 1 U.S.C. § 109, the United States
Supreme Court reads “repeal” broadly to include the enactment of new penalties
that merely diminish prior penalties. See Dorsey, 567 U.S. at 272 (“Case law
makes clear that the word ‘repeal’ applies when a new statute simply diminishes
the penalties that the older statute set forth.”). If the Supreme Court intended a
narrow application of the savings provision, it likely would have limited it to
penalties that were eliminated, not those that were merely diminished.
The savings provision has also been applied to the amendment of a statute
that did not itself impose a penalty but “play[ed] a significant role in the statutory
framework that” did. United States v. Jacobs, 919 F.2d 10, 12 (3d Cir. 1990).
United States v. Jacobs involved an amendment to 18 U.S.C. § 3559, which
changed certain crimes from a Class B felony to a Class C felony. 919 F.2d at
12. In turn, 18 U.S.C. § 3561 provides that a defendant convicted of a Class C
felony is eligible for probation, but one convicted of a Class B felony is not.
Jacobs, 919 F.2d at 11. Jacobs was convicted of a drug crime when the offense
was considered a Class B felony. Id. But she was not sentenced until after the
amendment to section 3559, and she argued she was eligible for probation
because the offense was a Class C felony at the time sentence and judgment were
entered. Id. The United States Court of Appeals for the Third Circuit applied the
18
savings provision and imposed the penalty—no eligibility for probation—in effect
when Jacobs committed her criminal act prior to the amendment. Id. at 13. The
court “decline[d] to attach any significance to the fact that section 3559 affects
punishment indirectly through its application. The plain language of the saving
statute indicates that it prevents statutory amendments from affecting penalties
retroactively, even if they do so indirectly.” Id. at 12. This too counsels toward a
broader application of section 109.
Cungtion also attempts to avoid the savings clause by pointing out that it
does not apply to jurisdiction-stripping statutes. See Hamdan, 548 U.S. at 576–
77. A “jurisdiction-conferring or jurisdiction-stripping statute usually ‘takes
away no substantive right but simply changes the tribunal that is to hear the
case.’ ” Id. at 577 (quoting Hallowell v. Commons, 239 U.S. 506, 508 (1916)). “If
that is truly all the statute does, no retroactivity problem arises because the
change in the law does not ‘impair rights a party possessed when he acted,
increase a party’s liability for past conduct, or impose new duties with respect to
transactions already completed.’ ” Id. (quoting Landgraf v. USI Film Prods., 511
U.S. 244, 280 (1994)). Section 109’s saving provision does not apply to
jurisdiction-stripping legislation because jurisdiction affects procedural, not
substantive, rights. See Bruner v. United States, 343 U.S. 112, 117 & n.9 (1952)
(holding repeal of court’s jurisdiction to consider claim for overtime by federal
employee “is not affected by the so-called general savings statute”).
Cungtion’s argument conflates a court’s jurisdiction to hear a case with a
state’s criminal jurisdiction to enforce its substantive laws. When Congress
19
changes the tribunal, or forum, to decide cases without affecting substantive
rights, there is no liability or penalty to be saved by section 109. But when
Congress repeals the ability to impose substantive laws, section 109 applies to
save both the substantive liability and the forum for adjudicating it. De La Rama
S.S. Co. v. United States, is instructive on this point. 344 U.S. 386 (1953). De La
Rama involved a suit in admiralty brought against the United States under the
War Risk Insurance Act of 1940, ch. 447, § 221, 54 Stat. 689, to recover for the
loss of a ship sunk by enemy action during World War II. De La Rama, 344 U.S.
at 386–87. After the war was over and while the suit was pending, Congress
repealed the War Risk Insurance Act, which had imposed liability on the United
States and provided jurisdiction for district courts to adjudicate claims under
the Act. Id. at 387–88. In rejecting the government’s position that the district
court lost jurisdiction when the Act was repealed, the Supreme Court reinforced
the difference between the repeal of substantive rights and the repeal of
jurisdiction. Id. at 389–91.
The Government rightly points to the difference between the
repeal of statutes solely jurisdictional in their scope and the repeal
of statutes which create rights and also prescribe how the rights are
to be vindicated. In the latter statutes, “substantive” and
“procedural” are not disparate categories; they are fused
components of the expression of a policy.
Id. at 390. Thus, where the same act both created the liability and the
jurisdiction, section 109 saved the liability, and the mode for enforcing it, after
the Act’s repeal. Id. at 389–91.
“Substantive law creates, defines, and regulates rights, while procedural
law governs the practice, method, procedure, or legal machinery by which the
20
substantive law is enforced or made effective.” Bd. of Trs. of the Mun. Fire & Police
Ret. Sys. v. City of W. Des Moines, 587 N.W.2d 227, 231 (Iowa 1998) (citing First
Nat’l Bank in Lenox v. Heimke, 407 N.W.2d 344, 346 (Iowa 1987)). Here, the 1948
Act did much more than decide which court would hear a criminal case. It
conferred on the State of Iowa criminal jurisdiction to impose its laws on
individuals who were not previously subject to those laws. In that way, it created
substantive liability where none existed. See, e.g., Hughes Aircraft Co. v. United
States ex rel. Schumer, 520 U.S. 939, 950–51 (1997) (amendment to
jurisdictional provisions of the False Claims Act, 31 U.S.C. § 3730(b), expanding
qui tam actions created jurisdiction in the form of substantive rights where none
existed, not just power of particular court). When Congress decided such
conduct should no longer be a state-law crime and repealed the 1948 Act, Iowa
lost the ability to enforce its criminal statutes in cases involving Indians on the
Meskwaki Settlement. Public Law 115–301 does not just change the tribunal
that can hear the case as contemplated in jurisdiction-stripping cases. It
eliminates the liability and penalties imposed by all Iowa criminal laws for
conduct involving Indians on the Meskwaki Settlement—liability that had existed
for the last seventy years. The Supreme Court’s jurisdiction-stripping
jurisprudence does not prevent application of the federal savings provision.
Considering the breadth in which section 109 has been applied and the
substantive rights created by the 1948 Act, we conclude the federal savings
provision applies to Public Law 115–301’s repeal of the 1948 Act. We do so
mindful of the Tribe’s sovereignty over its people and its land. Allowing State
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jurisdiction to continue over prerepeal conduct does no harm to the Tribe’s self-
governance. Indeed, in its amicus brief, the Tribe supports the State’s continuing
jurisdiction.
The next question is whether Congress nonetheless provided that its repeal
of the 1948 Act extinguished the State’s ability to continue existing prosecutions.
Public Law 115–301 is silent on this point, but that is not the end of the inquiry.
Although a repeal does not extinguish prior penalties unless the “repealing Act
shall so expressly provide,” 1 U.S.C. § 109, “the Court has long recognized that
this saving statute creates what is in effect a less demanding interpretive
requirement,” Dorsey, 567 U.S. at 273–74 (recognizing that the federal “saving
statute permits Congress to apply a new Act’s more lenient penalties to pre-Act
offenders without expressly saying so in the new Act”). The Supreme Court looks
beyond the words of the repealing statute, see id. at 273–80 (considering six
different factors in concluding Congress intended to apply new mandatory
minimum sentences retroactively), including the purpose and legislative history
of the repeal, see id. at 276–78 (considering, inter alia, that the purpose of
reducing sentencing disparities would be thwarted if the legislation was not
applied retroactively); Marrero, 417 U.S. at 661–62 (“Although the general saving
clause does not ordinarily preserve discarded remedies or procedures . . . the
legislative history of [section] 7237(d) reveals that Congress meant ineligibility
for parole to be treated as part of the ‘punishment’ for the narcotics offenses for
which respondent was convicted.” (citations omitted)); Great N. Ry., 208 U.S. at
465 (explaining that when interpreting a statute, the statute’s provisions cannot
22
justify a disregard of the will of Congress as manifested, either expressly or by
necessary implication).
Even considering Public Law 115–301’s legislative history and purpose, we
find nothing that reveals Congress intended its repeal of the state’s jurisdiction
to apply to pending cases. Part of the reason Congress repealed the 1948 Act
was to assist Indians on the Meskwaki Settlement with self-governance by giving
federal dollars to support tribal courts, law enforcement, and a detention center.
H.R. Rep. 115–279, at 2 (2017). The Bureau of Indian Affairs was not authorized
to release funds until the state’s jurisdiction over crimes by or against Indians
ended. Id. But this goal of providing additional funding does not imply the repeal
would apply retroactively. In other words, a retroactive application of the repeal
of criminal jurisdiction is not necessary to further this goal.
The parties also argue we must consider the role the state played, given
Congress’s reference to Iowa Code section 1.15A in the floor debate discussing
whether to repeal the 1948 Act. See 163 Cong. Rec. H8323–02 (2017). But
Congress’s recognition that “the State of Iowa has agreed that its Federal grant
of criminal jurisdiction can be repealed,” id. (statement of Rep. Cook), does not
imply that Congress intended to abate the state’s jurisdiction over prerepeal
conduct on the Meskwaki Settlement. That the state was ready to give up its
jurisdiction on the Meskwaki Settlement “as soon as” the federal government
accepted its tender says nothing about whether Congress intended its repeal of
the state’s jurisdiction to apply to pending prosecutions. Discussion of the Iowa
statute was merely a recognition that the state agreed it was ready to relinquish,
23
and the Tribe ready to accept, responsibility for prosecuting crimes on the
Meskwaki Settlement. Allowing state jurisdiction to continue over pending
criminal cases is not inconsistent with recognizing that the state and Tribe
agreed it was time.
Nothing in the language or enactment of Public Law 115–301 reveals that
Congress provided, expressly or by necessary implication, that the repeal of the
1948 Act would abate pending state prosecutions. We therefore conclude that
section 109 saves the State’s jurisdiction over crimes committed before Public
Law 115–301 went into effect.
C.
Finally, the fact that Cungtion received a deferred judgment in November
2018 and the State sought to revoke the deferral based on Cungtion’s conduct
in July 2019 does not change the outcome. The court may defer judgment and
place the defendant on probation under certain conditions. See Iowa Code
§ 907.3(1)(a). If the defendant does not cooperate with the probationary terms,
“the court may withdraw the defendant from the program, pronounce judgment,
and impose any sentence authorized by law.” Id. § 907.3(1)(b); see State v.
Thomas, 659 N.W.2d 217, 221 (Iowa 2003) (“If probation fails, the judgment is
entered and the court is permitted to impose any authorized sentence.”).
Critically, the district court retains jurisdiction over the defendant’s case during
the period of his probation. See Barker v. State, 479 N.W.2d 275, 278 (Iowa
1991). The judgment entered and the sentence imposed are based on the original
conduct giving rise to the deferred judgment, not the events triggering the
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probation violation. Because Cungtion committed his crimes on the Meskwaki
Settlement before December 11, 2018, the 2018 repeal of the 1948 Act did not
preclude the district court from entering judgment in 2020 after he violated the
terms of his probation.
III.
The State maintained jurisdiction over Cungtion’s case, and the district
court had jurisdiction to enter judgment on the deferred counts.
AFFIRMED.
Christensen, C.J., and Appel, Waterman, Mansfield, and McDonald, JJ.,
join this opinion. McDermott, J., files an opinion concurring specially.
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#20–0409, State v. Cungtion
McDERMOTT, Justice (concurring specially).
I join today’s opinion except for the part relying on legislative history. The
majority correctly concludes that the general savings statute, 1 U.S.C. § 109,
applies to Congress’s repeal of the 1948 Act (officially, the “Act of June 30, 1948,
ch. 759, 62 Stat. 1161”) granting criminal jurisdiction to Iowa over offenses by
or against members of the Sac & Fox Tribe within the state. The majority,
however, delves into “legislative history and purpose” to determine whether
Congress’s repeal applies to pending prosecutions. I would not rely on legislative
history to answer this question.
The majority cites a statement made by one representative in a floor debate
to support what “Congress intended” when it enacted Public Law 115–301. Yet
a statute’s meaning “is to be found not in the subjective, multiple mind of
Congress but in the understanding of the objectively reasonable person.” Frank
H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv.
J.L. & Pub. Pol’y 59, 65 (1988). When construing statutes, our task is to look for
the meaning of the text rather than the mystical “intent” of the legislature.
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
375 (2012). For this reason, “[w]e do not inquire what the legislature meant; we
ask only what the statute means.” Schwegmann Bros. v. Calvert Distillers Corp.,
341 U.S. 384, 396–97 (1951) (Jackson, J., concurring) (quoting Oliver Wendell
Holmes, The Theory of Legal Interpretation, in Collected Legal Papers 203, 207
(1920)).
26
The text of the general savings statute states that “[t]he repeal of any
statute shall not have the effect to release or extinguish any penalty, forfeiture,
or liability incurred under such statute.” 1 U.S.C. § 109. In my view, the text of
the statute permits pending state prosecutions to continue because the “penalty”
and “liability” incurred under the Iowa Code was incurred prior to the 1948 Act’s
repeal. The defendant’s pending prosecution thus is not “released” by the later
1948 Act repeal. Apart from the majority’s discussion of legislative history, I
concur in the majority’s sound reasoning and fully join the opinion.