This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-00-113

 

 

State of Minnesota,

Respondent,

 

vs.

 

Tony Lee Iverson,

Appellant.

 

 

Filed October 11, 2000

Reversed and remanded

Schumacher, Judge

 

Clearwater County District Court

File No. K19943

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Kip O. Fontaine, Clearwater County Attorney, 213 Main Avenue North, Department 301, Bagley, MN 56621 (for respondent)

 

Paul G. Thibeault, Anishinabe Legal Services, Post Office Box 157, Cass Lake, MN 56633 (for appellant)

 

 

            Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Willis, Judge.


U N P U B L I S H E D   O P I N I O N

SCHUMACHER, Judge

Appellant Tony Lee Iverson challenges his conviction for taking a deer in closed season and related offenses, arguing that the district court lacked subject-matter jurisdiction to adjudicate violations of state hunting regulations on the White Earth Reservation because, as the child of an enrolled member of the White Earth Band, he had become a member of the Band pursuant to a Tribal Council resolution.  We reverse and remand.

FACTS

            Iverson shot a deer on November 4, 1998, within the boundaries of the White Earth Indian Reservation.  The White Earth Indian Reservation firearms deer season began on October 24, 1998, but the State of Minnesota firearms deer season did not begin until November 7, 1998.  Although Iverson is not an enrolled member of the White Earth Band of the Minnesota Chippewa, or eligible to become an enrolled member, his mother is an enrolled member of the Band.  Iverson had been issued a harvest permit, as authorized by White Earth Tribal Council Resolution No. 001-97-006, allowing him to take a deer during the 1998 White Earth Indian Reservation hunting season.

            On November 6, 1998, Department of Natural Resources Conservation Officer Greg Spaulding received a report from the Clearwater County Sheriff's Department that a deer carcass was hanging in Iverson's yard.  Upon investigation, Spaulding discovered that the deer had been killed with a firearm and saw a yellow tag issued by the White Earth Band around the base of an antler. 

            Iverson was charged with taking a deer in closed season, in violation of Minn. Stat. § 97A.331, subd. 4 (1998), a gross misdemeanor.  He was also charged with possessing an untagged deer, in violation of Minn. Stat. § 97A.535, subd. 1 (1998), transporting an illegally taken big game animal, in violation of Minn. Stat. § 97A.521, subd. 5 (1998), and possessing a deer in closed season, in violation of Minn. Stat. § 97A.501, subd. 1 (1998), all misdemeanors.

            Iverson moved to dismiss the charges for lack of subject-matter jurisdiction.  The motion was denied.  The case was then submitted to the court for trial in the form of written argument on a stipulated record pursuant to State v. Lothenbach, 296 N.W.2d 854, 858 (Minn. 1980).  The district court found Iverson guilty on all counts, but stayed the sentences and fines pending the outcome of this appeal.

D E C I S I O N

            The subject-matter jurisdiction of courts is a question of law, which this court reviews de novo.  Cohen v. Little Six, Inc., 543 N.W.2d 376, 378 (Minn. App. 1996), aff'd, 561 N.W.2d 889 (Minn. 1997). 

            Iverson argues that the state lacks subject-matter jurisdiction over his hunting activities on reservation land because he became a member of the White Earth Band under White Earth Tribal Council Resolution No. 01-98-001, passed on October 24, 1997.  Relying on its "inherent authority to determine membership in the Band and determine what benefits those members are entitled to, including rights of * * * natural resources," the Tribal Council expanded the Band's membership "to include children and grandchildren of enrolled members with the full benefits to participate in rights of members."  This resolution was not offered into evidence.

The state argues that Iverson cannot raise the issue of his membership-by-resolution in the White Earth Band for the first time on appeal.  A reviewing court need not address issues raised for the first time on appeal.  State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).  Moreover, Iverson relies on a tribal resolution that was not presented to the district court.

The general rule is that an appellate court should not decide an issue based on matters outside the record.  Haskins v. Choice Auto Rental, Inc., 558 N.W.2d 507, 512 n.4 (Minn. App. 1997).  White Earth Tribal Council Resolution No. 01-98-001 is outside the record on appeal.  See Minn. R. Civ. App. P. 110.01 (providing that record on appeal consists of papers filed in district court, exhibits, and transcripts).  The resolution is offered to reverse rather than to support the district court's decision.  See In re Livingood, 594 N.W.2d 889, 895-96 (Minn. 1999) (holding that documentary evidence of conclusive nature offered to support result obtained in district court may be considered for first time on appeal).

The state argues that White Earth Tribal Council Resolution No. 01-98-001 conflicts with the constitution of the Minnesota Chippewa Tribe.  Iverson argues that any such conflict would have to be resolved by the tribal court.  But we need not address that issue.  There is plainly a dispute regarding the application of Resolution No. 01-98-001.  That conflict, and the application of the resolution itself, must first be presented in the district court.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).

We reverse and remand to the district court for reconsideration of its subject-matter jurisdiction over Iverson's alleged offenses in light of White Earth Tribal Council Resolution No. 01-98-001, if applicable.

Reversed and remanded.