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 nonIndians 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 SelfDetermination, 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-mississippiin-iowa-welcomes-senate-passage-of-proposed-bill/ [https://perma.cc/93RXZUVV].
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 congressionallysanctioned 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 
21

jurisdiction to continue over prerepeal conduct does no harm to the Tribe’s selfgovernance. 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 
24

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.
25

#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.