RODNEY W. SWENSON, Employee/Appellant, v. MICHAEL NICKABOINE d/b/a NORTHLAND QUALITY BUILDERS and SFM MUT. INS. CO., Employer-Insurer, and MEDICA HEALTH PLANS, DETROIT LAKES CHIROPRACTIC, MINNESOTA DEP’T OF LABOR & INDUS./VRU, and MERITCARE HEALTH SYS., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 26, 2010
JURISDICTION - SUBJECT MATTER. Minnesota courts have jurisdiction to consider a claim for workers’ compensation benefits asserted by a non-Indian employee who was injured on an Indian reservation while employed by a private party.
Reversed and remanded.
Determined by: Stofferahn, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Jennifer Patterson
Attorneys: David C. Wulff, Roseville, MN, for the Appellant. M. Chapin Hall, Lynn, Scharfenberg & Assocs., Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s decision that Minnesota courts lacked jurisdiction over the employee’s claim for workers’ compensation benefits. We reverse and remand for a hearing on the merits of the employee’s claim.
Rodney Swenson, the employee, claimed to have sustained a work injury on May 30, 2007, while working for Michael Nickaboine, doing business as Northland Quality Builders. The claimed injury took place on the reservation of the Mille Lacs Band of Ojibwe [MLBO]. The employer’s workers’ compensation insurer denied the employee’s claim. Among other defenses, the insurer asserted that Minnesota had no jurisdiction over the claim pursuant to Minn. Stat. § 176.041, subd. 5a.
The employee’s claims were bifurcated and the only issue at the hearing was whether Minnesota jurisdiction existed for the employee’s claim.
Mr. Swenson has lived in Detroit Lakes most of his life and he has worked a variety of construction and carpentry jobs. He became acquainted with Mr. Nickaboine, who also resided in Detroit Lakes, and the two were social acquaintances. Mr. Swenson is not a member of the MLBO or of any other band or tribe. Mr. Nickaboine is an enrolled member of the MLBO.
The MLBO is one of the bands which make up the Minnesota Chippewa Tribe. The MLBO has its own tribal government with a tribal constitution, statutes, and tribal courts. Through a corporate commission, the MLBO also operates a number of businesses, including Grand Casino Hinckley.
At some point, the MLBO decided to expand Grand Casino Hinckley and it contracted with M.A. Mortenson Company to be the general contractor on the expansion project. The expansion was adjacent to the then existing casino and hotel. According to the deed, which was in evidence, the land was owned by the “United States of America in trust for the Mille Lacs Band of Chippewa Indians.”
A MLBO ordinance created a Tribal Employment Rights Office (TERO) and encouraged the employment of tribal members in projects such as the casino expansion. Fifty percent of the jobs in these projects were to be provided to tribal members either as subcontractors or as employees. Mr. Nickaboine was hired as a subcontractor by M.A. Mortenson to work on the casino expansion, and in October 2006, Mr. Nickaboine hired Mr. Swenson to work for him. The employment of Mr. Swenson, a non-tribal member, was to be approved by the TERO. The record was kept open by the compensation judge after the hearing for the parties to obtain evidence of this approval but no such evidence was found.
Mr. Nickaboine had obtained a license from the MLBO to conduct business on the reservation. All of Mr. Swenson’s work for Mr. Nickaboine was at the casino expansion project on the reservation and Mr. Swenson claims he was injured on the worksite on May 30, 2007. He filed a claim petition for various benefits under chapter 176 of Minnesota Statutes.
Mr. Nickaboine’s workers’ compensation insurer denied the claim, arguing that Mr. Swenson’s injury was excluded from the Minnesota Worker’s Compensation Act as an out-of-state injury under Minn. Stat. § 176.041, subd. 5a. Because of the question of jurisdiction, the employee’s claims were bifurcated and the jurisdiction issue was considered by a compensation judge in a hearing on May 4, 2009. The compensation judge issued her findings and order on July 17, 2009. The compensation judge did not address the insurer’s defense. She determined that Mr. Swenson had entered into a consensual employment relationship with a “tribal employer” working on “tribal land.” The compensation judge concluded that the employee’s claim represents a “contested case that is tribal in nature.” No jurisdiction was found and the employee’s claim was dismissed. The employee has appealed.
STANDARD OF REVIEW
The question of whether Minnesota courts have jurisdiction to consider the employee’s claims under Chapter 176 of Minnesota Statutes is a question of law. As such, it is considered by this court de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993) summarily aff’d (Minn. June 3, 1993); Molstad v. City of St. Louis Park, slip op. (W.C.C.A. May 6, 2003).
Although the compensation judge decided the case on other grounds, we feel it necessary to first consider the argument raised by the insurer at the hearing and before this court. Specifically, the insurer contends that Mr. Swenson’s claim is barred by Minn. Stat. § 176.041, subd. 5a, which provides that “[e]xcept as specifically provided by subdivisions 2 and 3, injuries occurring outside of this state are not subject to this chapter.” The insurer argues that the MLBO reservation, being tribal land, is located “outside of” the state of Minnesota. We disagree.
The insurer cites to no authority for its position. Extensive litigation has taken place on the question of whether and in what circumstances a state may apply its laws on a reservation. Nowhere in any of the case law on this issue is there any suggestion that a reservation is in some manner outside of the state in which it is located. Indeed, in Nevada v. Hicks, the Supreme Court noted that “[s]tate sovereignty does not end at a reservation’s border. Though tribes are often referred to as ‘sovereign’ entities . . . it is now clear, ‘an Indian reservation is considered part of the territory of the State.’” Nevada v. Hicks, 533 U.S. 353, 361-362 (2001) (citations omitted).
We conclude that the MLBO reservation lies within Minnesota for the purposes of Minn. Stat. §176.041, subd. 5a, and that a work injury on the reservation is not an out-of-state injury under the workers’ compensation statute. The question of whether Minnesota jurisdiction exists in the present case remains to be addressed.
Mr. Swenson’s injury took place on MLBO tribal land, and his employer is an enrolled member of the MLBO. The United States Supreme Court “has consistently recognized that Indian tribes retain ‘attributes of sovereignty over both their members and their territory,’ United States v. Mazurie, 419 U.S. 554, 557 (1975), and that ‘tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the states.’ Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 154 (1980). It is well established, however, that state laws may, in some instances, be applied to tribal Indians on the reservations if Congress has expressly so provided.” California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1986).
In Public Law 280, codified as 28 U.S.C. § 1360, Congress granted some states, including Minnesota, state jurisdiction “over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed . . . to the same extent that such state has jurisdiction over other civil causes of action, and those civil laws of such state that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the state.” The MLBO lands fall within the “areas of Indian country” listed for Minnesota.
In Cabazon, the Court considered the application of 28 U.S.C. § 1360 in light of the argument by the state of California that the statute allowed the state to regulate gambling activity on a reservation. The Court drew a distinction between the broad state jurisdiction granted in criminal matters and the more limited jurisdiction in civil matters. In Bryan v. Itasca County, 426 U.S. 373 (1976), the Court held that the statute did not grant states general civil regulatory authority and determined that Minnesota’s attempt to enforce its personal property tax on the reservation was invalid. The Cabazon Court stated “We recognized that a grant to States of general civil regulatory power over Indian reservations would result in the destruction of tribal institutions and values. Accordingly, when a State seeks to enforce a law within an Indian reservation under the authority of Pub. L. 280, it must be determined whether the law is criminal in nature and thus fully applicable to the reservation under § 2, or civil in nature, and applicable only as it may be relevant to private civil litigation in state court.” 480 U.S. at 208.
Although portions of the Minnesota Workers’ Compensation Act regulate employers and insurers, requiring, for example, employers to have workers’ compensation insurance or setting out times and amounts of benefit payments, the Act is primarily intended to provide a statutory scheme systematically governing remedies available for injured workers. The legislature has stated that the Act’s intent “is based on a mutual renunciation of common law rights and defenses by employers and employees alike . . . [in that] Employees’ rights to sue for damages over and above medical and healthcare benefits and wage loss benefits are to a certain degree limited by the provisions of this chapter, and an employer’s rights to raise common law defenses such as lack of negligence, contributory negligence on the part of the employee, and others are curtailed as well.” Minn. Stat. §176.001.
We believe that a workers’ compensation claim brought by an injured worker is a civil cause of action of the type contemplated by 28 U.S.C. § 1360, and that, as a result, Minnesota jurisdiction may be asserted over a petitioner’s claim arising out of a workers’ compensation injury even though the injury occurred on tribal lands.
As a second and separate basis for finding Minnesota jurisdiction in this case, we refer to 40 U.S.C. § 3172. In that statute, Congress provided that “the state authority charged with enforcing and requiring compliance with the state workers’ compensation law and with the orders, decisions, and awards of the authority may apply the laws to all land and premises in the state which the Federal Government owns or holds by deed or act of cession.”
In the instant case, the site where the work injury took place, although part of the MLBO reservation, is owned by the United States. As such, it would appear that Minnesota jurisdiction over this case has been granted by Congress. In Begay v. Kerr-McGee Corp., 682 F2d 1311 (9th Cir. 1982), the c.ourt affirmed a dismissal of personal injury claims made by miners against their employer. The injuries happened on a reservation and the court determined that 40 U.S.C. § 290 permitted Arizona to apply its workers’ compensation laws to work injuries occurring on Indian reservations. The miners’ district court actions were barred by the exclusivity provision of the Arizona workers’ compensation statutes. In accord with Begay is a decision of the Navajo Supreme Court in Nez v. Peabody Western Coal Co., 7 Nav. R. 416 (Nav. Sup. Ct. 1999).
We conclude, based on the plain language of 40 U.S.C. § 1372, that Minnesota workers’ compensation law applies to this case.
The compensation judge concluded that neither of these federal statutes applied in the present case based on her interpretation of the decision by the Minnesota Supreme Court in Tibbetts v. Leech Lake Reservation Bus. Comm., 397 N.W.2d 883, 39 W.C.D. 238 (Minn. 1986). We disagree.
In Tibbetts, the employee, a member of the Leech Lake Band of the Chippewa Tribe, brought a workers’ compensation claim against his employer, the Leech Lake Band. The Band raised the defense of sovereign immunity to the employee’s claim. The primary issue before the Supreme Court was whether the Band had waived its sovereign immunity. The employee asserted that it had, in part on the theory that 28 U.S.C. § 1360 itself constituted a waiver by Congress of the tribe’s sovereign immunity defense. Citing Bryan v. Itasca County, 426 U.S. 373 (1976), the Band argued that Public Law 280 was “a limited conferral upon the courts of Minnesota of forum jurisdiction over private parties, one or both of which may be tribal members,” but denied that it conferred upon the state any general civil regulatory powers over the Chippewa tribe or the Leech Lake R.B.C.” 397 N.W.2d at 886-887, 39 W.C.D. at 241. The Minnesota Supreme Court adopted the Band’s argument and concluded that 28 U.S.C. § 1360 did not waive the Band’s sovereign immunity.
The employee in Tibbetts also argued in the alternative that the Band’s sovereign immunity defense was waived by 40 U.S.C. § 3172. The court rejected that argument, concluding that the “act simply cannot be read to confer upon states jurisdiction over otherwise immune or exempt parties.” 397 N.W.2d at 888, 39 W.C.D. at 243. The court further noted that “[t]he sole objective of the statute was to close a gap that prevented states from exercising workers’ compensation jurisdiction over work-related injury causing accidents occurring on federal lands. For example, following enactment of the statute, an Indian injured on an Indian reservation in the course of his employment by a non-Indian employer could maintain a workers’ compensation action against that employer under the state’s workers’ compensation law, and the employer could not raise the fact the accident occurred on federal land as a defense.” 397 N.W.2d at 888, 39 W.C.D. at 243.
In Tibbetts, the Court held only that Minnesota did not have jurisdiction to consider a workers’ compensation claim against an Indian band itself where the band’s inherent sovereign immunity had not been waived either by the band’s act or by federal statute. The present case does not involve the MLBO or any subordinate business entity of the MLBO, and thus does not involve a question of MLBO’s sovereign immunity. Michael Nickaboine, doing business as Northland Quality Builders, is a private employer. His affiliation with the Band consists solely of his personal membership in the Band and a business license from the Band allowing him to conduct business on the reservation. Neither the holding nor any language in Tibbetts would preclude Minnesota jurisdiction in the present case.
The compensation judge’s determination that no jurisdiction exists in the present case appears to be based on her conclusion that this case involved consensual employment by the employee with a “tribal employer” on tribal land. The compensation judge concluded that a tribal court could assert jurisdiction, and that this precluded the exercise of jurisdiction in a Minnesota workers’ compensation tribunal. While we agree with the compensation judge that the MLBO tribal court would also be able to assert jurisdiction over a worker’s compensation claim filed there by a petitioner injured during employment on tribal land, we think the compensation judge erred in concluding that the tribal court has exclusive, rather than concurrent jurisdiction.
Having concluded that the Office of Administrative Hearings has concurrent jurisdiction over the employee’s claim with the tribal courts, we must apply principles of comity to determine whether the exercise of jurisdiction in that tribunal is appropriate. In Lemke v. Brooks, 614 N.W.2d 242 (Minn. App. 2000), our court of appeals considered whether a Minnesota court could exercise jurisdiction over a wrongful death action against an Indian defendant by a non-Indian arising from a death taking place on tribal land. After holding that 28 U.S.C. § 1360’s grant of civil jurisdiction applied to the wrongful death action at issue, the court in Lemke went on to consider whether the state court was required to defer to the jurisdiction of the tribe. The court stated that the guiding federal principle is deference, and “[a]bstention by a state court is appropriate when the exercise of state court jurisdiction ‘would undermine the authority of the tribal courts’ or ‘infringe on the right of Indians to govern themselves.’” 614 N.W.2d at 246 (citations omitted). The court noted that the wrongful death plaintiff did not seek damages against the tribe, a tribal official, or a tribal business, or implicate the sovereign immunity of the tribe. The court then considered the subject matter of the law, noting that Minnesota’s wrongful death statute was “not a regulatory law, but a civil law of general application to private persons, which has the same effect on the reservation as elsewhere.” In light of the general applicability of the law and the absence of interference with tribal self-government, the court held that a Minnesota court could properly assert jurisdiction.
The civil remedies provided to workers under the Minnesota workers’ compensation act are similarly laws of general application to private persons both on and off tribal lands. The MLBO has not, as far as we are able to ascertain, acted to legislate in the area of workers’ compensation other than with respect to the claims of employees against the band itself or its tribally owned enterprises. The exercise of Minnesota jurisdiction in this case would thus not interfere with any workers’ compensation scheme enacted by the MLBO. Indeed, pursuant to the band’s statutes, the tribal Court of Central Jurisdiction applies Minnesota law to the extent not in conflict with the band’s unwritten customs and traditions, and in civil cases where neither the band’s written law nor federal laws are applicable. See 24 MBLSA § 2007.
In summary, we find that the Office of Administrative Hearings has concurrent jurisdiction with the Mille Lacs tribal court over this case, and further conclude that the exercise of that jurisdiction is consistent with the principles of comity. The compensation judge’s decision to the contrary is reversed. This matter is remanded to the Office of Administrative Hearings for a hearing on the merits of the employee’s claim.
 28 U.S.C. § 1360 is frequently referred to in case citations as Public Law 280. Similarly, 40 U.S.C. § 3172 was previously codified as 40 U.S.C. § 290. In this decision, citations to either statute will be in accord with the cite used by the source.
 The compensation judge’s characterization of Mr. Nickaboine as a “tribal employer” invokes a phrase that is unique to the compensation judge’s decision and seems meant to impute to Mr. Nickaboine’s business some sort of implicit affiliation with the governmental interests of the band. The record was clear, however, that Mr. Nickaboine’s connection with the band on the casino expansion was solely in having a license to work on the reservation and in being subject to an affirmative action clause in the contract between M.A. Mortenson and the band. These connections do not make Mr. Nickaboine’s private business operation an entity of the band.