Before: Procter Hug, Jr., Chief Judge, Stephen Reinhardt, Circuit Judge, and Edward C. Reed, Jr., District Judge.*
The opinion of the court was delivered by: Reed, District Judge
Appeals from the United States District Court for the District of Montana Jack D. Shanstrom, District Judge, Presiding
April 6, 1998--Seattle, Washington
Opinion by Judge Reed; concurring by Judge Reinhardt
*The Honorable Edward C. Reed, Jr., Senior District Judge for the District of Nevada, sitting by designation.
Appellant David Means, a member of the Sisseton-Wapatan (Sioux) Tribe of Indians, is currently free on bail pending criminal prosecution in the Tribal Court of the North-ern Cheyenne Indian Tribe. After being arrested and freed on bail, but prior to trial, Means sought habeas relief from the district court on jurisdictional grounds. He argued that the Tribal Court does not have criminal jurisdiction over him, as a nonmember Indian, for the crimes with which he is charged. The district court reviewed his petition, but denied relief. The court's holding was based on a federal statute enacted after all of the acts with which Means is charged were allegedly committed, and which purportedly "recognizes and affirm[s]" the criminal jurisdiction of all tribal courts over all Indians, whether or not members of the same tribe.
Further criminal proceedings in the Tribal Court have been stayed by this court pending Disposition of these appeals. Means appeals the district court's denial of his petition, while the Tribal Court and its Presiding Judge, Glenn Littlebird (collectively, "the Tribal Court" or Appellees), cross-appeal the issue of whether the district court properly entertained Means' pre-trial habeas petition, or whether "principles of federalism and comity" require that defendants actually be convicted in tribal court before the federal courts intervene.
I. FACTS AND PROCEDURAL HISTORY
On January 10, 1997, a complaint was filed in the Northern Cheyenne Tribal Court charging David Means with fifteen counts of aggravated sexual assault, under Section 7-4-7E of the Northern Cheyenne Tribal Code. Each count carries a maximum possible penalty of one year in jail and a $5000.00 fine.*fn1 All counts are alleged to have occurred between 1978 and 1988, and the alleged victims are two of Means' nieces. The comparatively recent filing of the criminal complaint in this case appears to stem from the fact that the victims have only recently "recovered" memories of the abuse, which is alleged to have happened when they were children.
At all times relevant to this case (that is, from prior to 1978 through the present), Means has lived within the Northern Cheyenne Indian Reservation in Montana. However, he is not a member of the Northern Cheyenne Tribe. He is an "Indian," though, since he is a member of the Sisseton-Wapatan (Sioux) Tribe.*fn2 Thus Means is a "non-member Indian" from the Northern Cheyenne Tribal Court's point of view. As will be discussed in detail below, jurisdiction over crimes committed in "Indian country"*fn3 is divided among tribal, state, and federal courts, depending on the status of the perpetrator and the victim as either non-Indians or Indians--and potentially, at least, as either non-member Indians or tribal members. Thus Means' status as a non-member Indian is crucial, but again, does not appear disputed.
Means was arrested on the same day that the complaint against him was filed. Bail was set initially at $50,000 cash; reduced to $30,000 cash by the court upon Means' motion; further reduced to $5000 on appeal; increased back to $30,000 on "full appeal"; and eventually reduced again to $10,000 by stipulation of the parties. Means has been free on bail since January 31, 1997, but he is apparently prohibited from leaving the reservation or the State of Montana, and from contacting children.
Means moved to dismiss the action for lack of jurisdiction on April 9, 1997. The tribal court denied his motion, and Means appealed. The Northern Cheyenne Court of Appeals apparently affirmed the tribal court's decision "by order . . . dated June 20, 1997." On July 2, 1997, Means filed a complaint in federal district court, which he amended on July 10 to include a claim for habeas corpus relief under 25 U.S.C. S 1303. The district court treated the complaint as a petition for a writ of habeas corpus, which it denied on October 2, 1997. Shortly thereafter, on October 9, 1997, Means timely filed the instant appeal. The Tribal Court and its presiding Judge, Glen Littlebird, then filed a notice of cross-appeal on October 23, 1997.
 Means' primary contention is that the Tribal Court does not have jurisdiction to try him for the crimes of which he stands accused. The Tribal Court, on the other hand, claims that its jurisdiction over these crimes is proper, based on the 1990 Amendments to the Indian Civil Rights Act. Since the crimes at issue are alleged to have occurred before 1990, however, the 1990 ICRA amendments will only serve as a basis for jurisdiction if they apply retroactively to conduct completed prior to the amendments' passage. If the amendments do not apply retroactively, the Tribal Court will not have jurisdiction to try Means for these crimes, and Means' petition must therefore be granted--since, as we discuss below, there is no basis for the Tribal Court's assertion of jurisdiction over Means other than the 1990 amendments to the ICRA.
A. Retroactivity of the 1990 Amendments to the Indian Civil Rights Act
A district court's decision on whether a statute may be applied retroactively is a question of law reviewed de novo. Chenault v. United States Parcel Serv., 37 F.3d 535, 537 (9th Cir. 1994). Likewise, a district court's denial of a petition for a writ of habeas corpus is reviewed de novo. Selam v. ...