 Justice Anthony Kennedy wrote a concurrence which stated that Congress was very careful to base the changes to the statute on inherent tribal powers and not on a delegation of authority . Kennedy states that is all that is needed to decide the case , but that the Court went further than was necessary when it decided that Congress had the power under the constitution to authorize tribes to prosecute non @-@ member Indians . Finally , Kennedy was concerned that the court did not address the question of the Equal Protection Clause . He would have reversed the Eighth Circuit without going into the additional detail . 
