This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Tony Lee Iverson,




Filed February 12, 2002

Reversed and remanded

Halbrooks, 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, Jeanine Brennan, Assistant County Attorney, 213 Main Avenue North, Department 301, Bagley, MN 56621 (for respondent)


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



            Considered and decided by Toussaint, Chief Judge, Halbrooks, Judge, and Foley, Judge.*


U N P U B L I S H E D   O P I N I O N


Appellant previously challenged his conviction for taking a deer out of season.  This court reversed and remanded to the trial court with instructions to reconsider the matter, in light of a document first introduced on appeal that appellant claimed barred the trial court’s subject-matter jurisdiction.  On remand, the trial court determined that it retained jurisdiction because the document was not part of the stipulated record and reinstated appellant’s conviction.  At a posttrial hearing on appellant’s motion to vacate judgment, the trial court took judicial notice of the document, thereby making it part of the record.  Appellant now challenges the reinstatement of the conviction, arguing that the trial court abused its discretion by failing to follow this court’s remand instructions.  We conclude that the trial court acted within its discretion and consistently with our remand instructions when it reinstated the conviction.  But because the trial court subsequently admitted the document into evidence, but denied the parties an opportunity to be heard concerning the document’s effect, if any, on subject-matter jurisdiction, we reverse and remand for an evidentiary hearing on the merits.    


On October 24, 1997, the White Earth Tribal Council of the White Earth Band of the Minnesota Chippewa passed Resolution No. 01-98-001, expanding tribal membership to include children and grandchildren of enrolled members.  The resolution provides:

NOW, THEREFORE, IT IS HEREBY RESOLVED, that the White Earth Reservation Business Committee hereby determines its members to include children and grandchildren of enrolled members with the full benefits to participate in rights of members as may be from time to time determined by resolution of the Tribal Council.


* * * *


IT IS FURTHER RESOLVED, that until time permits, the previously issued “green cards” shall be determined identification cards for members exercising their rights to hunt and fish.


Tribal membership and tribal enrollment are not synonymous terms.  The Bureau of Indian Affairs Guidelines for State Courts provides:

Enrollment is not always required in order to be a member of a tribe.  Some tribes do not have written rolls.  Others have rolls that list only persons that were members as of a certain date.  Enrollment is the common evidentiary means of establishing Indian status, but it is not the only means nor is it necessarily determinative.


Commentary, B.I. Guidelines for State Courts, 44 Fed. Reg. 67586 (citing United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir. 1979)). 

It is undisputed that appellant is not an enrolled member of the White Earth Band of the Minnesota Chippewa, nor is he eligible to become an enrolled member.  But his mother is an enrolled member of the Band.  As a result, pursuant to Resolution No. 01‑98-001, the Band issued appellant a natural resources harvest permit that allowed him to take deer during the 1998 White Earth Indian Reservation deer hunting season.

Appellant shot a deer on November 4, 1998, within the physical boundaries of the White Earth Indian Reservation and within the tribe’s firearms deer season.  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.  The state lacks jurisdiction to regulate the hunting and fishing activities of White Earth Band members within the White Earth Reservation.  State v. Clark, 282 N.W.2d 902, 909 (Minn. 1979).

Appellant was charged with taking a deer in closed season, in violation of Minn. Stat. §§ 97B.311(a), 97A.331, subd. 4 (1998), a gross misdemeanor.  Appellant 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 (1998), and possessing a deer in closed season, in violation of Minn. Stat. § 97A.501, subd. 1 (1998), all misdemeanors.

At the omnibus hearing, appellant moved to dismiss the charges for lack of subject-matter jurisdiction, asserting that the state had no jurisdiction to regulate hunting on the White Earth Reservation by any person licensed to hunt by the White Earth Band.  The motion was denied.  Appellant then submitted the matter to the trial court on a stipulated record, pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The stipulation stated, in part: 

Tony Iverson is not an enrolled member of the White Earth Band of the Minnesota Chippewa.  In addition, Tony Iverson is not eligible for enrollment.  Tony Iverson is a direct descendent of an enrolled member of the White Earth Band of the Minnesota Chippewa, his mother being enrolled. 


The stipulation made no mention of Resolution No. 01-98-001 or its potential applicability, and the resolution was not offered into evidence at either the omnibus hearing or trial.

The trial court found appellant guilty and sentenced him on the gross misdemeanor count to one year in the county jail, with stay of execution of all but 30 days, to be served on the STS program.  The court also imposed a fine of $3,000, staying all but $750, and placed appellant on unsupervised probation for two years.  On the misdemeanor counts, appellant was sentenced to 90 days in jail, with execution of all but 30 days stayed, to be served concurrently with the gross misdemeanor sentence on the STS program.  The trial court imposed and stayed a $700 fine, and placed appellant on probation for one year. 

            Iverson appealed the conviction, arguing for the first time that, pursuant to Resolution No. 01-98-001, he is a member of the White Earth Band, and that the trial court lacked subject-matter jurisdiction to hear his case.

This court held:

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.


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.


State v. Iverson, No. C5-00-113, 2000 WL 1528673, at *4-5 (Minn. App. Oct. 11, 2000) (citation omitted).

On remand, the trial court retained jurisdiction and reinstated the conviction, reasoning that, insofar as Resolution No. 01-98-001 was not part of the stipulated trial court record, it was not “applicable” within the meaning of the remand instruction.

Appellant moved to vacate the trial court order.  At the hearing on the motion, the trial court took judicial notice of Resolution No. 01-98-001 as the legislative enactment of another jurisdiction, and announced that “the resolution is now in the District Court file,” but did not permit argument on the effect of the resolution.

The trial court denied appellant’s motion to vacate judgment.  This appeal follows.


            We review the trial court’s compliance with remand instructions under an abuse-of-discretion standard.  Halverson v. Village of Deerwood, 322 N.W.2d 761, 766-67 (Minn. 1982).  A trial court’s duty on remand is to execute the mandate of the remanding court strictly according to its terms.  Id. at 766.  When the trial court receives no specific direction as to how it should proceed, it may handle the matter in any way not inconsistent with the remand order.  Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988).

            Here, this court directed “reconsideration of [the trial court’s] subject-matter jurisdiction over Iverson’s alleged offenses in light of White Earth Tribal Council Resolution No. 01-98-001, if applicable.”  The remand did not dictate specific action to be taken by the trial court.  Jallen v. Agre, 265 Minn. 578, 578, 122 N.W.2d 207, 207 (1963) (considering trial court failure to follow explicit supreme court mandate). 

Appellant argues that this court’s order for reconsideration compelled the trial court to reopen the record and conduct an evidentiary hearing.  But in the absence of specific language to that effect, there was no such obligation.  See Kahn v. Tronnier, 547 N.W.2d 425, 431 (Minn. App. 1996) (holding that “on remand, the district court shall have discretion regarding whether to reopen the record.”).  The trial court addressed this court’s concerns in its decision on remand, and did not abuse its discretion in declining to hold a hearing. 

            Appellant also argues that the trial court erred in finding that the resolution was not applicable on remand because the parties had stipulated to the facts of the case and never withdrew the stipulation.  We disagree.

When parties stipulate as to what evidence will be considered by the trier of fact, the stipulation remains binding on the parties, the trial court, and the appellate court as long as it remains in effect.  Lappinen v. Union Ore Co., 224 Minn. 395, 407, 29 N.W.2d 8, 17 (1947); Abendroth v. Nat’l Farmers Union Prop. & Cas. Co., 363 N.W.2d 785, 787 (Minn. App. 1985).  A stipulation excludes consideration of other evidence except where it clearly appears that the parties have abandoned the stipulation.  Lappinen, 244 Minn. at 408, 29 N.W.2d at 17.

            Appellant argues that, since the stipulation only addressed his eligibility for enrollment in the band, as distinct from his membership, the applicability of the membership resolution was not determined by the stipulation.  But a stipulation excludes consideration of all other evidence, not just directly contradictory evidence.  And the record does not show that the parties abandoned the stipulation.  As a result, the stipulation excluded evidence of the resolution on remand. 

This court did not, as appellant suggests, instruct the trial court to reach a specific result on remand.  The instruction was to determine whether the resolution applied.  Our remand language did not preclude the trial court from reaching the same result it had reached the first time, as long as it acted consistently with the remand instruction.  Without properly entered evidence of the resolution, the fact of appellant’s mother’s enrollment in the White Earth Band had no legal significance to the trial court’s determination of its subject-matter jurisdiction. 

            But at the hearing on appellant’s posttrial motion, the trial court took judicial notice of the resolution as another jurisdiction’s legislative enactment, and announced, “the resolution is now in the District Court file.”  Appellant now argues that, when the trial court took judicial notice of the resolution, it “removed the only barrier to the District Court’s consideration of the applicability of the tribal resolution to the Appellant.”  Respondent argues that the resolution is still excluded because it is outside the stipulated evidence. 

A trial court may properly admit evidence by judicial notice in criminal proceedings.  See State v. Gerdes, 291 Minn. 353, 357, 191 N.W.2d 428, 431 (1971). 

Rulings on evidentiary matters and the conduct of trial are left to the discretion of the trial court and will not be reversed absent an abuse of discretion.


Lundman v. McKown, 530 N.W.2d 807, 829 (Minn. App. 1995) (citation omitted), review denied (Minn. May 31, 1995). 

The issue here, then, is whether the trial court abused its discretion when it admitted the resolution by judicial notice, in spite of the stipulation.  We are aware of no Minnesota authority squarely addressing the issue of whether a court has discretion to add to or modify the stipulated record by judicial notice, over the objection of a party.  Courts in other jurisdictions have taken judicial notice of facts not stipulated to and over the objections of one stipulating party.  See People v. Herrera, 90 Cal. Rptr. 802, 803 (Cal. Ct. App. 1970) (recognizing authority of district court to take judicial notice of facts not stipulated to).  We conclude that, in light of the unique procedural posture and circumstances of this case, the trial court acted within its discretion by opening the record at the posttrial hearing and admitting the resolution by judicial notice.  But having done that, it was an abuse of discretion for the trial court to preclude argument on the merits of the resolution. 

A challenge to jurisdiction, such as appellant’s introduction of the resolution, can be raised at any time.  See Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 432 (Minn. App. 1995) (“[L]ack of subject matter jurisdiction may be raised at any time, including for the first time on appeal.”) (citations omitted), review denied (Minn. May 31, 1995); see also Minn. R. Civ. P. 12.08(c) (“[w]henever it appears * * * that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”).   

No evidentiary hearing has been held to determine what effect, if any, the resolution has on appellant’s tribal membership and the trial court’s subject-matter jurisdiction.  Appellant argues that a determination of the resolution’s effect on his band membership is an internal tribal-membership dispute that falls outside the jurisdiction of Minnesota courts.  Respondent contends that the resolution has no effect on appellant’s tribal membership because it violates the Minnesota Chippewa Tribe Constitution by purporting to grant membership to individuals who fail to meet minimum constitutional tribal-membership criteria. 

But the issue before us is not whether the resolution makes appellant a member of the Chippewa tribe.  The issue is whether the trial court abused its discretion on remand by admitting the resolution into evidence at the posttrial hearing on the motion to vacate and then not permitting the parties to argue its effect. 

We find ourselves in the somewhat unusual position of affirming both the trial court’s initial decision to exclude the resolution in light of the stipulation as well as the trial court’s subsequent decision to admit the resolution in spite of the stipulation.  But once the resolution became part of the record, the trial court erred by not permitting the parties to fully present their respective positions on the resolution’s effect, if any, on the court’s subject-matter jurisdiction.  Therefore, we conclude that the case should be remanded to the trial court for a hearing on the effect of the resolution. 

Reversed and remanded.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.