This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2046

 

State of Minnesota,
Respondent,

vs.

John William Parker,
Appellant.

 

Filed December 6, 2005

Affirmed

Minge, Judge

 

Cass County District Court

File No. K0-02-1337

 

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Earl E. Maus, Cass County Attorney, Courthouse, P.O. Box 3000, Walker, MN 56484 (for respondent)

 

John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Minge, Judge; and Worke, Judge.

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellant challenges his conviction for issuing worthless checks on the grounds that (1) because he is an enrolled member of the White Earth Band of Chippewa Indians and the checks were written on an Indian reservation, the district court lacks jurisdiction; and (2) because the checks were written for gambling, they are unenforceable pursuant to Minn. Stat. § 541.21 (2002).  We conclude that because the worthless check charge is criminal, the checks were written on the Leech Lake Reservation, and federal law grants the state of Minnesota jurisdiction over criminal offenses occurring on the Leech Lake Reservation,  the district court had jurisdiction.  We further hold that since there is no evidence in the record that the checks were written for gambling purposes, they are enforceable obligations.  We affirm.

FACTS

 

The district court convicted appellant John Parker under Minn. Stat. § 609.535, subds. 2(a)(1) and 3 (2002), a statute prohibiting the issuance of worthless checks.  The charges proceeded in the district court pursuant to Lothenbach procedures, whereby appellant pleaded not guilty, waived his right to a jury trial, and the district court considered the charges based on stipulated facts.  See State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn. 1980).  Accordingly, appellant preserved the right to appeal the denial of his pretrial motion to dismiss. 

            Appellant is an enrolled member of the White Earth Band and resides on the White Earth reservation.  During February 2002, appellant wrote four worthless checks to “Casino Cash.”  While this entity has its principal business address in Mahnomen, within the White Earth reservation, appellant tendered the checks to “Casino Cash” locations at Palace Casino and Northern Lights Casino on the Leech Lake Reservation.  The amount of the checks, including return check fees assessed by appellant’s bank, totals $692.26.  The record does not disclose how appellant spent the money he received from “Casino Cash.”  

D E C I S I O N

 

I.

The first issue is whether the district court had jurisdiction to hear and decide the charges against appellant.  Appellant claims tribal sovereignty precludes jurisdiction.  Issues of jurisdiction are reviewed de novo.  State v. R.M.H., 617 N.W.2d 55, 58 (Minn. 2000).  State jurisdiction over Native Americans is governed by federal statutes and case law.  Id.  In California v. Cabazon Band of Mission Indians, the United States Supreme Court adopted an analytical framework for determining whether state law applies to a Native American in “Indian country.”  480 U.S. 202, 207, 107 S. Ct. 1083, 1087 (1987).  Under the Cabazon test, state law does not generally apply to Native Americans on their reservations unless Congress expressly consents to jurisdiction.  Id. 

Congress did expressly consent to state criminal jurisdiction when it passed Public Law 280.  Pub. L. No. 83-280, § 2, 67 Stat. 588, 588-89 (1953) (codified as amended at 18 U.S.C.  § 1162(a) (2000)) (“P.L. 280”).  Under P.L. 280, the state has broad criminal jurisdiction over offenses committed by or against Native Americans within Minnesota “Indian country.”  18 U.S.C. § 1162(a).[1]  Despite this clear jurisdictional grant, there is no bright-line rule to determine whether a law is criminal or civil.  State v. Stone,572 N.W.2d 725, 729 (Minn. 1997).  According to the supreme court’s formulation in Stone, if a law generally prohibits a specific type of conduct, it is a criminal law.  Id. at 730 (citing Cabazon, 480 U.S. at 215, 107 S. Ct. at 1091).

In close cases, the court may look at state public policy factors to determine whether the statute prohibits conduct, and may be considered criminal.  State v. Robinson, 572 N.W.2d 720, 723 (Minn. 1997).  While no one factor is dispositive, the court may consider: “(1) the extent to which the activity 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 law’s potential penalties.”  Id. at 723.  Thus, possession of marijuana is clearly considered criminal, State v. St. Clair, 560 N.W.2d 732, 734 (Minn. App. 1997), as is the prohibition of underage drinking, Robinson, 572 N.W.2d at 723-24. 

Conversely, the failure to provide motor vehicle insurance, driving with expired registration, and driving without a seat belt are regulatory offenses and the state has no jurisdiction under P.L. 280 to prosecute a tribal member for such violations occurring on their reservations.  Stone, 572 N.W.2d at 727, 731.  In each instance, the court reasoned that these violations constituted exceptions to the generally-permitted conduct of operating a motor vehicle, and fell into the civil regulatory category.  Id. at 731.  See also State v. Johnson, 598 N.W.2d 680, 684 (Minn. 1999) (holding that driving after license revocation is a civil regulatory traffic offense); Robinson, 572 N.W.2d at 724 (holding that failing to yield to an emergency vehicle is a civil regulatory traffic offense). 

Similarly, the Minnesota predatory-offender registration statute is a civil regulatory statute because its purpose is to gather information and aid law enforcement in tracking offenders.  State v. Jones, 700 N.W.2d 556, 560 (Minn. App. 2005), review granted (Minn. Oct. 18, 2005).  Therefore, the state could not apply this civil regulatory registration law to a tribal member on his tribe’s reservation.  Id. at 561.

The worthless check statute at issue in this case is part of the criminal code.  Minn. Stat. § 609.535.  Writing checks is a permitted practice, but writing bad checks is not.  Public policy further demonstrates that this is a criminal statute.  The conduct harms the property interest of the person or entity receiving the worthless check, the statute contains an exception only for postdated checks or a check given for past consideration, and the conduct is accomplished only through the act of the issuer.  Id. at subd. 5.  Finally, and most importantly, violation of the statute subjects one to imprisonment for not more than five years and a fine of up to $10,000; clearly criminal penalties.  Id. at subd. 2a.  Therefore, the statute at issue is criminal and P.L. 280 confers criminal jurisdiction.

II.

            The second issue is whether the district court erred in determining that appellant’s worthless check debt does not qualify for the gambling debt exception under Minn. Stat. § 541.21.  Appellant claims that Minn. Stat. § 541.21 renders his worthless check debt unenforceable.  This is a question of statutory interpretation, which the court reviews de novo.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).

            The statute provides:

Every note, bill, bond, mortgage or other security or conveyance in which the whole or any part of the consideration shall be for any money or goods won by gambling or playing at cards, dice, or any other game whatever . . . shall be void and of no effect as between the parties to the same.  . . .  The provisions of this section shall not apply to: . . . (3) gaming activities conducted pursuant to the Indian Gaming Regulatory Act, 25 U.S.C. 2701 et         seq. . . .  .

Minn. Stat. § 541.21 (emphasis added).  A personal check is a “bill” for purposes of this statute.  State v. Stevens, 459 N.W.2d 513, 514 (Minn. App. 1990).

            The defendant in Stevens presented checks totaling $465 to a local bar in exchange for pull tabs.  Id. at 514.  When the checks were returned for insufficient funds, the state prosecuted the defendant for theft by check under Minn. Stat. § 609.532 (1988); Stevens, 459 N.W.2d at 514.  The court of appeals affirmed the district court’s holding that the debt was unenforceable under section 541.21, principally because the defendant presented the checks and received pull tabs in return.  Id. at 514.  At the time this court decided Stevens in 1990, section 541.21 did not include an exception for activities under the Indian Gaming Regulatory Act.  Minn. Stat. § 541.21 (Supp. 1989).  The Stevens decision is based on the language of the statute, and holds that the check must be tendered for gambling purposes for the debt to be unenforceable.  Stevens, 459 N.W.2d at 514-15.  For appellant to prevail, therefore, he must show a link between the funds received and a gambling debt. 

While appellant did make a motion to dismiss the debt as unenforceable under section 541.21, appellant’s counsel essentially stipulated that he had no factual basis to make such a motion.  Therefore, unlike the defendant in Stevens who presented evidence that the funds were used for gambling, the appellant presented no such evidence in this case.

Appellant urges this court to assume that because he cashed the checks at “Casino Cash” locations in casinos, he used the money for gambling.  However, the record indicates that “Casino Cash” is a privately-owned entity, not affiliated with any casino.  Therefore, “Casino Cash” may cash a personal check for any individual, not just gambling patrons.  Furthermore, appellant received cash, which could be used for any purpose.  If appellant received gambling vouchers or tokens instead of cash, appellant’s assumption would be more reasonable.  However, given the nearly empty record, the district court correctly concluded that section 541.21 did not apply.[2]

            Affirmed.



[1] In Minnesota, the Red Lake and the Bois Forte (Nett Lake) Reservations are not subject to Public Law 280.  The Red Lake Reservation is expressly excepted from state jurisdiction, 18 U.S.C. § 1162(a), whereas the state retroceded jurisdiction of the Bois Forte Reservation, Act of May 23, 1973, ch. 625, 1973 Minn. Laws 1500.  All other reservations are Public Law 280 areas.

[2] In addition, Minn. Stat. § 541.21 contains an exception for gambling debts incurred at establishments which operate pursuant to an approved state-tribal gaming compact.  Under this exception, gambling debts incurred at casinos are enforceable.  However, because we hold that section 541.21 does not apply in this case, we need not address the application of such exception here.