may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Walter Francis Reese,
Filed March 3, 1998
Itasca County District Court
File No. T1-97-360
Helen Hill Blanz, 512 Northeast First Avenue, Grand Rapids, MN 55744 (for respondent)
Considered and decided by Amundson, Presiding Judge, Huspeni, Judge, and Kalitowski, Judge.
The state challenges the district court's dismissal for lack of jurisdiction of a disorderly conduct complaint arising from an incident between two Native American individuals which took place on sovereign land. We reverse.
Reese moved to dismiss the charge for lack of jurisdiction. The district court granted the motion. This appeal followed.
State laws may be applied to Native Americans on tribal land if Congress has expressly provided. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207, 107 S. Ct. 1083, 1087 (1987). In Public Law 280, Congress expressly granted certain states, including Minnesota, criminal jurisdiction, and certain civil jurisdiction, over Indian lands within those states. 18 U.S.C. §1162 (1994). The Supreme Court has clarified the issue of state jurisdiction over tribal land:
[I]f the intent of a state law is generally to prohibit certain conduct, it falls within Pub. L. 280's grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory and Pub. L. 280 does not authorize its enforcement on an Indian reservation. The shorthand test is whether the conduct at issue violates the State's public policy.
Cabazon Band, 480 U.S. at 209, 107 S. Ct. at 1088. The Minnesota Supreme Court has recently clarified this test by outlining a two-step approach. State v. Stone, __ N.W.2d __, 1997 WL 761278, at *3. The first step is to determine how broadly to construe the conduct that is prohibited; using a traffic statute as an example, determining whether to consider the conduct as driving (broadly) or whether to consider the conduct as that which is prohibited by the specific statute (narrowly). Id. As the supreme court stated:
The broad conduct will be the focus of the test unless the narrow conduct presents substantially different or heightened public policy concerns. If this is the case, the narrow conduct must be analyzed apart from the broad conduct.
Id. Here, the conduct to be analyzed is disorderly conduct, as defined by Minn. Stat. § 609.72.
The second step of the supreme court's approach is to apply the Cabazon test. Id. If the conduct is generally permitted, but subject to exceptions, then the statute is regarded as civil/regulatory, and violations are subject to tribal jurisdiction. If the conduct is generally prohibited, then the statute is criminal/prohibitory, and violations are subject to state jurisdiction. In close cases, Cabazon's shorthand public policy test is advised. Id. Factors that may be useful in determining whether the state's public policy is invoked to the point of the conduct being considered "criminal" are
(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; (4) the nature and severity of the potential penalties for a violation of the law.
The disorderly conduct statute is clearly criminal/prohibitory under the Cabazon/Stone standard, and the state has jurisdiction to prosecute. Here, we are not called upon to determine whether the state wisely or prudently exercised its authority in charging this offense in state court. We recognize, however, that the state has jurisdiction to prosecute.
Judge Roland C. Amundson