Concurring specially, Willis, Judge

Cass County District Court

File No. T5-96-514

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101

Earl E. Maus, County Attorney, Charles R. Segal, Assistant County Attorney, Cass County Courthouse, P.O. Box 3000, Walker, MN 56484 (for Respondent)

Amber J. Ahola, Anishinabe Legal Services, Inc., P.O. Box 157, Cass Lake, MN 56633 (for Appellant)

Considered and decided by Willis, Presiding Judge, Peterson, Judge, and Foley, Judge.

Appellant Terence O'Connor challenges the district court's denial of his motion to dismiss charges against him for lack of subject matter jurisdiction, arguing Minnesota does not have the authority to enforce traffic regulations against him because he is a member of the Leech Lake Band of the Minnesota Chippewa Tribe, living within the Leech Lake Reservation.

O'Connor argues the district court improperly denied his motion to dismiss all three charges against him for lack of subject matter jurisdiction because the state has no authority to enforce the statutes against tribal members on the reservation. Because the district court had already dismissed the charges of failure to register and failure to transfer ownership, however, it would not have been proper for it to address whether it had subject matter jurisdiction over those charges. Therefore, the only issue this court will address is whether the state had jurisdiction to enforce its failure to provide insurance law against O'Connor.

The state argues that there is not an adequate factual basis for O'Connor's argument because there are no facts in the record to show that O'Connor is a Leech Lake Band member who lives on the reservation or that the offense took place on the reservation. We disagree. O'Connor filed an affidavit in district court stating that he is a member of the Leech Lake Band and lives on the reservation. See Minn. R. Crim. P. 28.02, subd. 8 (record on appeal shall consist of papers filed in district court, offered exhibits, and transcript of proceedings). Further, there was no dispute in district court over whether the offense took place on the reservation, and counsel for the state conceded at oral argument to this court that the offense took place within the reservation.

Indian tribes retain attributes of sovereignty over their land and members, but their sovereignty is subordinate to that of the federal government. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207, 107 S. Ct. 1083, 1087 (1987). States may apply their laws to tribal members on their reservations if Congress grants them the authority to do so. Id. Congress granted jurisdiction to certain states, including Minnesota, over criminal matters and some civil matters on Indian reservations when it enacted Public Law 280. Pub. L. No. 280, 67 Stat. 588 (1953) (codified as amended at 18 U.S.C. §1162, 28 U.S.C. §1360 (1994)). Public Law 280's grant of civil jurisdiction has been interpreted to grant jurisdiction to the states over private litigation involving reservation Indians, but not general civil regulatory power over reservations. Bryan v. Itasca County, 426 U.S. 373, 384-85, 96 S. Ct. 2102, 2109 (1976).

[W]hen 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 * * *, or civil in nature, and applicable only as it may be relevant to private civil litigation in state court.

Cabazon, 480 U.S. at 208, 107 S. Ct. at 1088. If the intent of the law is to prohibit certain conduct, the law is criminal/prohibitory and falls within Public Law 280's grant of criminal jurisdiction. Id. at 209, 107 S. Ct. at 1088. If the conduct is generally permitted, but is regulated, the law is civil/regulatory and is outside Public Law 280's grant of jurisdiction. Id. "The shorthand test is whether the conduct at issue violates the State's public policy." Id.

This court recently applied the Cabazon test to section 169.797, the failure to provide insurance law at issue here, and held that the statute was civil/regulatory, noting that "the requirement that drivers have liability insurance is * * * a way of regulating the generally permitted activity of driving." State v. Stone, __ N.W.2d __, slip op. at 8 (Minn. App. Dec. 17, 1996). This court also recently held that Minnesota's law against driving under the influence of alcohol is criminal/prohibitory. Bray v. Commissioner of Pub. Safety, 555 N.W.2d 757, 761 (Minn. App. 1996). The Stone opinion distinguished Bray by pointing out that while there are some circumstances under which Minnesota allows driving without proof of insurance, it never allows driving while intoxicated. See Stone, slip. op. at 9.

In another application of the Cabazon test in the motor vehicle context, the Ninth Circuit concluded that Washington state's speed limit law was civil/regulatory because it regulated the generally permitted activity of driving. Confederated Tribes of Colville Reservation v. Washington, 938 F.2d 146, 149 (9th Cir. 1991), cert. denied, 503 U.S. 997 (1992). The state argues Colville is distinguishable from this case because the speed limit law in Colville was not a criminal statute, and Minnesota's insurance requirement carries a criminal penalty. The civil or criminal categorization of a statute, however, is less important than whether the activity is generally permitted or prohibited. See State v. LaRose, 543 N.W.2d 426, 427 (Minn. App. 1996) (concluding a law could not be categorized as criminal/prohibitory simply because it was enforceable by both criminal and civil means).

The state argues that even if Public Law 280 does not grant it jurisdiction, this is a circumstance in which it may assert jurisdiction in the absence of congressional authorization. In Cabazon, the court said that there was no

inflexible per se rule precluding state jurisdiction over tribes and tribal members in the absence of express congressional consent. "[U]nder certain circumstances a State may validly assert authority over the activities of non-members on a reservation, and * * * in exceptional circumstances a State may assert jurisdiction over the on-reservation activities of tribal members."

480 U.S. at 214-215, 107 S. Ct. at 1091 (footnote and citation omitted). The court cited two cases in which it applied a preemption analysis and held that states could enforce their sales taxes against non-Indians at tribal smokeshops even in the absence of congressional permission because the states' interest in collecting the tax outweighed the burden on the smokeshop operators. Id. at 215-16, 107 S. Ct. at 1091-92. The Cabazon court then concluded that because the State of California's interest in regulating tribal bingo does not outweigh the tribal and federal interests supporting tribal bingo, state regulation would impermissibly infringe on tribal government. Id. at 221-22, 107 S. Ct. at 1094-95.

Here, unlike Cabazon and the preemption cases it cited, the activities of non-Indians are not at issue, so it is not clear that a preemption analysis is appropriate. Even if a preemption analysis were applied, the state has not shown that its interest in drivers being insured presents the "exceptional circumstances" necessary to justify assertion of state jurisdiction over the on-reservation activities of tribal members in the absence of express congressional authorization. See Stone, slip op. at 10-11 (concluding that federal interests in tribal self-government outweigh state's interest in enforcing traffic regulations against tribal members on the reservation). Moreover, the state's interest in drivers being insured is protected by the Leech Lake Band's own vehicle registration ordinance, which requires that a vehicle must be insured to be licensed.[1]

Because the state law requiring insurance regulates the generally permitted activity of driving, it is civil/regulatory and Public Law 280 does not authorize the state to enforce it against tribal members on the reservation. Further, the state's interest in drivers being insured does not outweigh the tribal and federal interests in tribal self-government. The district court therefore improperly denied O'Connor's motion to dismiss for lack of subject matter jurisdiction on the charge of failure to provide motor vehicle insurance.

Reversed.

WILLIS, Judge (Concurring Specially):

I concur solely on the ground that the precise issue presented by this case was decided by this court in State v. Stone, ___ N.W.2d ___ (Minn. App. Dec. 17, 1996).

This court subsequently decided State v. Jackson, ___ N.W.2d ___ (Minn. App. Jan. 21, 1997), which concluded that the state has jurisdiction to enforce its proof of insurance requirements against a member of the Leech Lake Band of the Minnesota Chippewa tribe cited while driving within the boundaries of the Leech Lake Ojibwe Reservation. Jackson distinguished Stone factually, in part on the ground that Jackson's residence was off-reservation. Id., slip op. at 5-6. Were O'Connor not a reservation resident, I would adopt here the reasoning of Jackson in its entirety.

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

[ ]¹While we recognize the sovereignty of the Leech Lake Band in this area, we also appreciate the importance of motor vehicle insurance and call on the band to vigorously enforce its own ordinance.