IN COURT OF APPEALS
Itasca County District Court
File No. CR-06-325
John M. Stuart, State Public Defender, Theodora K. Gaïtas, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414; and
John J. Brogan, Special Assistant State Public Defender, Dorsey & Whitney, 50 South Sixth Street, Suite 1500, Minneapolis, MN 55402 (for appellant)
Lori Swanson, Attorney General, 1800
John J. Muhar, Itasca County Attorney, Heidi M. Chandler, Assistant County Attorney, 123 Northeast Fourth Street, Grand Rapids, MN 55744 (for respondent)
Considered and decided by Shumaker, Presiding Judge; Stoneburner, Judge; and Wright, Judge.
When the predicate driver’s license revocation is based on an alcohol-related driving offense, the offense of driving after revocation, a violation of Minn. Stat. § 171.24, subd. 2 (2004), presents heightened public policy concerns. Under such circumstances, Minn. Stat. § 171.24, subd. 2, is a criminal statute, which is enforceable by the State of Minnesota against an Indian in Indian country.
Appellant William Losh is enrolled in the Mille Lacs Band of Ojibwe, a band of the Minnesota Chippewa Tribe. On December 14, 2005, while driving on the reservation of the Leech Lake Band of Ojibwe, another band of the Minnesota Chippewa Tribe, Losh was cited for driving after revocation, a violation of Minn. Stat. § 171.24, subd. 2 (2004). The parties stipulated that Losh’s driver’s license was revoked on or about October 14, 2000, based on the alcohol-related driving offense of driving while impaired.
Losh moved to remove this matter to tribal court, arguing that the district court lacks subject-matter jurisdiction over offenses committed by Indians in Indian country. In an order filed June 15, 2006, the district court denied this motion. Quoting State v. R.M.H., 617 N.W.2d 55, 63 (Minn. 2000), the district court held that Losh, a nonmember of the Leech Lake Band of Ojibwe, “is not entitled to the same ‘insulation from state government authority’ on the Leech Lake Reservation because the Leech Lake Band’s sovereign interest is not as strongly implicated as it would be with an enrolled member.”
Losh submitted the case to the district court for a trial on stipulated facts, which preserved this jurisdictional issue for appeal. The district court found Losh guilty of the charged offense, and this appeal followed.
If the predicate driver’s-license revocation is based on an alcohol-related driving offense, does the district court have subject-matter jurisdiction over a charge of driving after revocation, a violation of Minn. Stat. § 171.24, subd. 5 (2004), against an enrolled member of a band of the Minnesota Chippewa Tribe when the charged offense occurred on the reservation of another band of the tribe?
jurisdiction presents a question of law, which we review de novo. State v. R.M.H., 617 N.W.2d 55, 58 (
Public Law 280 expressly
grants Minnesota “broad criminal and limited civil jurisdiction over all Indian country within the state,
except for the Red Lake Reservation.” State v. Jones, 729 N.W.2d 1, 4 (Minn.
2007) (quotation omitted); 18 U.S.C. § 1162(a); see also Act of May 23, 1973, ch. 625, 1973 Minn. Laws 1500
(retroceding criminal jurisdiction for Bois Forte Indian Reservation at Nett
Lake back to federal government under authority of 25 U.S.C. § 1323
In Stone, the Minnesota Supreme Court adopted
a two-step approach for determining whether a statute is criminal or civil/regulatory. 572 N.W.2d at 730. The first step
requires courts to determine “the focus of the Cabazon analysis.”
(1) the extent to which the [conduct] directly threatens physical harm to persons or property or invades the rights of others; (2) the extent to which the law allows for exceptions and exemptions; (3) the blameworthiness of the actor; [and] (4) the nature and severity of the potential penalties for a violation of the law.
determining whether the focus of the Cabazon
analysis is the broad or narrow conduct regulated, the second step requires courts
to determine whether that focused-on conduct is generally prohibited or
generally permitted, subject to exceptions.
The Stone court considered whether several
statutes were criminal or civil/regulatory, including Minn. Stat. § 171.02
(1996) (prohibiting driving without driver’s license) and Minn. Stat.
§ 171.27 (1996) (prohibiting driving with expired driver’s license).
determined that the broad conduct of driving is the focus of the Cabazon analysis,
the Stone court applied the second
step and concluded that the focused-on conduct of driving is generally
permitted, subject to regulation.
statute at issue in this case, Minn. Stat. § 171.24, subd. 2 (2004), prohibits
a person from driving after his or her driver’s license was revoked. In State v. Johnson, the supreme court applied Stone’s two-step approach to determine
whether that statutory provision is criminal or civil/regulatory. 598 N.W.2d 680, 684 (
Less than three
years later, the supreme court clarified its holding in Johnson. In State v. Busse, a member of the White
Earth Band of Ojibwe was driving on the White Earth Band of Ojibwe’s reservation
when he was cited for driving after cancellation as inimical to public safety
in violation of Minn. Stat. § 171.24, subd. 5 (1998). 644 N.W.2d 79, 80-81 (Minn. 2002). His driver’s license was cancelled as
inimical to public safety based on his four prior driving-under-the-influence
Here, the stipulated facts and evidence in the record establish that Losh’s driver’s license revocation was the result of his prior alcohol-related driving offense of driving under the influence. Therefore, as in Busse, Losh’s offense of driving after revocation is “inextricably linked to [his] driving under the influence conviction[ ] and the state’s efforts to halt further driving by those who disregard the state’s driving under the influence laws.” Id. As the Busse court has held, the public policy underlying laws that are intended to halt further driving by those who disregard the laws that prohibit persons from driving under the influence “‘is substantially heightened in comparison to the general scheme of driving laws.’” Id. at 85 (quoting Stone, 572 N.W.2d at 731).
consideration of the factors the Busse
court identified as useful for determining whether the narrow conduct regulated by a
statute presents heightened public policy concerns also establishes that the
narrow conduct of driving after a revocation based on an alcohol-related driving
offense implicates heightened public policy concerns. See
Stone, 572 N.W.2d at 730 ((1) extent
to which conduct directly threatens physical harm or invades others’ rights;
(2) extent to which law allows for exceptions and exemptions; (3) actor’s
blameworthiness; (4) nature and severity of potential penalties for violation
of law). First, the Stone court has held that violations of
laws that are intended to combat driving under the influence “create[ ] a
greater risk of direct injury to persons and property on the roadways.”
Because Losh’s offense of
driving after revocation based on a prior alcohol-related driving offense
implicates heightened public policy concerns, the first step in Stone’s two-step approach establishes that
the focus of the Cabazon analysis is
Losh’s narrow conduct of driving after revocation. The second step requires us to determine
whether that focused-on conduct is generally prohibited or generally permitted,
subject to exceptions. Busse, 644 N.W.2d at 88; Stone, 572 N.W.2d at 730. In
Because we conclude that Losh’s offense falls within Public Law 280’s express grant of subject-matter jurisdiction to the district court, we need not reach the state’s argument that, in the absence of an express grant, exceptional circumstances warrant the district court’s exercise of subject-matter jurisdiction over this offense. See Stone, 572 N.W.2d at 731 (holding that absent express grant of jurisdiction, state law may be applied to Indians in Indian country if “exceptional circumstances” exist).
Federal law expressly grants the district court subject-matter jurisdiction over appellant’s offense of driving after revocation based on a prior alcohol-related offense because, under these circumstances, the statute that regulates that offense is a criminal statute. Therefore, the district court correctly concluded that it had subject-matter jurisdiction. Because subject-matter jurisdiction is the sole issue in this appeal from Losh’s conviction, we affirm.
is unclear from the record whether
the parties submitted the case on stipulated facts under Minn. R. Crim. P.
26.01, subd. 3, which permits an appellant to “raise issues
on appeal the same as from any trial,” including pretrial
issues, or under the procedure set forth in State v. Lothenbach, 296 N.W.2d 854 (
 The Stone court interpreted the “public policy” referred to in the Cabazon test “to mean public criminal policy,” which is public policy that “seeks to protect society from serious breaches in the social fabric which threaten grave harm to persons or property.” 572 N.W.2d at 730.