State of Minnesota v. Todd Jeremy Thompson

STATE OF MINNESOTA
IN COURT OF APPEALS
A25-0527

State of Minnesota,
Respondent,

vs.

Todd Jeremy Thompson,
Appellant.

Filed February 2, 2026
Reversed
Connolly, Judge
Concurring specially, Wheelock, Judge

Mahnomen County District Court
File No. 44-CR-24-293

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Jason M. Hastings, Mahnomen County Attorney, Mahnomen, Minnesota (for respondent)

Claire Nicole Glenn, Climate Defense Project, Minneapolis, Minnesota (for appellant)

Frank Bibeau, 1855 Treaty Authority, Grand Rapids, Minnesota (for amicus curiae 1855
Treaty Authority)

Considered and decided by Wheelock, Presiding Judge; Connolly, Judge; and Bond,

Judge.

SYLLABUS

Minnesota Statutes section 152.0263, subdivision 1(1) (Supp. 2023), is a

civil/regulatory statute, which the State of Minnesota lacks jurisdiction to enforce against

an enrolled member of the White Earth Band of Ojibwe for the possession of cannabis

flower occurring within the territorial boundaries of the White Earth Reservation.
 OPINION

CONNOLLY, Judge

Appellant challenges the denial of his motion to dismiss a charge of cannabis

possession in the first degree, arguing that the statute criminalizing his possession of

cannabis flower is civil/regulatory in nature under Public Law 280 and is therefore not

enforceable against appellant as an enrolled member of the White Earth Band of Ojibwe.

Appellant also argues that cannabis possession is a sovereign right reserved in the 1855

Treaty between the Ojibwe and the United States, which additionally bars his prosecution.

Because respondent State of Minnesota has adopted legislation decriminalizing the

possession of cannabis flower by adults below certain quantities statewide and has

authorized Tribal compacts for the regulation of cannabis by Minnesota’s Tribal

governments, we conclude that cannabis-flower possession is a civil/regulatory matter,

which the state lacks jurisdiction to enforce against an enrolled member of the White Earth

Band of Ojibwe for possession occurring on his own reservation. Consequently, we reverse

the decision of the district court.

FACTS

Appellant Todd Jeremy Thompson is an enrolled member of the White Earth Band

of Ojibwe who owns and operates Asema Tobacco & Pipe Shop, LLC (the shop), on the

White Earth Reservation in the City of Mahnomen. The shop is licensed as a tobacco

distributor/wholesaler under the White Earth Reservation Tax Code but is not licensed to

sell cannabis.

2
 On August 2, 2023, law enforcement executed a search warrant at the shop and

located 3,405 grams (or approximately 7.5 pounds) of cannabis flower. The state charged

appellant in April 2024, with one count of cannabis possession in the first-degree, in

violation of Minnesota Statutes section 152.0263, subdivision 1(1). Appellant moved to

dismiss the complaint, arguing that the state lacks jurisdiction to prosecute him under the

statute because, given the passage of the Minnesota Adult Use Cannabis Act, the statute

was civil/regulatory in nature under Public Law 280. Additionally, appellant argued that

the state lacks jurisdiction because cannabis possession is a sovereign right reserved in the

1855 Treaty between the Ojibwe and the United States.

The district court denied appellant’s motion. The district court relied on two prior

decisions by this court, State v. St. Clair, 560 N.W.2d 732, 734-35 (Minn. App. 1997), and

State v. LaRose, 673 N.W.2d 157, 163-64 (Minn. App. 2003), rev. granted (Minn. Feb. 25,

2004) and ord. granting rev. vacated (Minn. Aug. 17, 2004), which each concluded that

the possession of cannabis on reservation land was a criminal offense over which the state

had enforcement jurisdiction under Public Law 280. The district court cited LaRose to

support the proposition that Minnesota has a “heightened public policy” against the

possession and use of illegal drugs, including cannabis, and that the possession of cannabis

violates the state’s “public criminal policy.” See 673 N.W.2d at 164. As such, the district

court determined that Minnesota Statutes section 152.0263 was criminal/prohibitory in

nature, and that the state had enforcement jurisdiction under Public Law 280. The district

court also rejected Thompson’s treaty argument.

3
 Appellant sought discretionary review of the district court’s order by this court

pursuant to Minnesota Rule of Criminal Procedure 28.02, subdivision 3. We granted

discretionary review.

ISSUES

I. Did the district court err in determining that the statute criminalizing
appellant’s cannabis-flower possession is a criminal/prohibitory law
enforceable by the state under Public Law 280?

II. Did appellant satisfy his burden to establish that cannabis possession is a right
retained in the 1855 Treaty with the United States, which bars his prosecution
as an enrolled member of the White Earth Band of Ojibwe?

ANALYSIS

Whether the state has jurisdiction to prosecute a tribal member charged with an

offense committed within the territorial boundaries of their reservation is a question of

federal law which we review de novo. State v. Busse, 644 N.W.2d 79, 82 (Minn. 2002).

The interpretation of a treaty is also a question of law that we review de novo. Richard v.

United States, 677 F.3d 1141, 1144-45 (Fed. Cir. 2012).

I. The district court erred in determining that the statute criminalizing
appellant’s cannabis-flower possession is a criminal/prohibitory law that the
state is permitted to enforce under Public Law 280.

The United States Supreme Court has “consistently recognized that Indian tribes

retain attributes of sovereignty over both their members and their territory.” California v.

Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987) (quotation omitted). “This

sovereignty is ‘dependent on, and subordinate to, only the Federal Government, not the

States.’” State v. Stone, 572 N.W.2d 725, 728 (Minn. 1997) (quoting Cabazon, 480 U.S.

4
at 207). “However, it is established that state laws may be applied to tribal Indians on their

reservations if Congress has expressly so provided.” Id.

“In Public Law 280, Congress granted Minnesota broad criminal and limited civil

jurisdiction over all Indian country within the state, with the exception of Red Lake

Reservation.” Id. (footnote omitted). Section 2 of Public Law 280 authorizes Minnesota

to exercise jurisdiction over criminal matters, and section 4 authorizes Minnesota to

exercise jurisdiction over civil causes of action between private parties. See 18 U.S.C.

§ 1162(a) (1994) (codifying Pub. L. No. 83-280, § 2); see also 28 U.S.C. § 1360 (1994)

(codifying Pub. L. No. 83-280, § 4). Section 4, however, does not grant the state general

civil/regulatory authority. Stone, 572 N.W.2d at 729.

“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 [section] 2, 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.

To determine whether a state law is criminal or civil for purposes of determining its

enforceability under Public Law 280, the Supreme Court in Cabazon adopted the following

test:

[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.

5
Id. at 209. The Court noted, however, that the distinction between civil/regulatory and

criminal/prohibitory is not a bright-line rule, and that “[t]he applicable state laws governing

an activity must be examined in detail before they can be characterized as regulatory or

prohibitory.” Id. at 210, 211 n.10.

The Minnesota Supreme Court in Stone created a two-step approach for application

of the Cabazon test. Stone, 572 N.W.2d at 730.

The first step is to determine the focus of
the Cabazon analysis. 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.

After identifying the conduct on which to focus the analysis, the second step is to

apply the Cabazon standard to determine if the law is criminal/prohibitory or

civil/regulatory. Id.

If the conduct is generally permitted, subject to exceptions,
then the law controlling the conduct is civil/regulatory. If the
conduct is generally prohibited, the law is criminal/prohibitory.
In making this distinction in close cases, we are aided
by Cabazon’s “shorthand public policy test,” which provides
that conduct is criminal if it violates the state’s public policy.

Id. As “all laws implicate some public policy,” the Minnesota Supreme Court interpreted

“public policy,” as used in Cabazon, to mean “public criminal policy.” Id. “Public

criminal policy goes beyond merely promoting the public welfare. It seeks to protect

society from serious breaches in the social fabric which threaten grave harm to persons or

property.” Id.

6
 A. The proper focus of the Cabazon analysis is the broad conduct of
cannabis-flower possession and not the narrow conduct of possessing an
unlawful quantity of cannabis.

As discussed, the first step of our analysis is to determine whether the broad or

narrow conduct at issue is to be the focus of the Cabazon test. Id. Here, appellant is

charged with possession of cannabis in the first degree, in violation of Minnesota Statutes

section 152.0263, subdivision 1(1), which prohibits the unlawful possession of “more than

two pounds but not more than ten kilograms of cannabis flower.” Accordingly, the broad

conduct that is addressed by this statute is the possession of cannabis flower, whereas the

narrow conduct is the possession of cannabis flower in an amount greater than two pounds

but less than ten kilograms. See Minn. Stat. § 152.0263, subd. 1(1). As Stone directs, the

broad conduct is to be the focus of the Cabazon analysis unless “substantially different or

heightened public policy concerns” are implicated by the narrow conduct. 572 N.W.2d at

730.

On August 1, 2023, legislation became effective in Minnesota that decriminalized

the possession by adults of cannabis in certain forms and below certain quantities. 2023

Minn. Laws ch. 63, art. 1, § 9, at 2707-10 (codified at Minn. Stat. § 342.09 (2024)).

Relevant here, the legislation specifically authorizes an adult 21 years of age or older to

possess up to two pounds of cannabis flower in their private residence or up to two ounces

of cannabis flower in a public place. Minn. Stat. § 342.09, subd. 1(2), (3). The possession

of cannabis flower in quantities above these thresholds is criminalized by offenses of

increasing severity depending on the amount by which they are exceeded. See Minn. Stat.

§§ 152.0263, subds. 1-4 (criminalizing the possession of cannabis flower in quantities

7
greater than two ounces and not more than ten kilograms), .023, subd. 2(a)(5)(i) (2024)

(criminalizing possession of more than ten kilograms of cannabis flower).

Our first question, therefore, is whether the possession of between two pounds and

ten kilograms of cannabis flower—the behavior criminalized by the charged offense—

implicates “substantially different or heightened public policy concerns” than those

attendant to the lawful possession of up to two pounds of cannabis flower in one’s own

residence. See Stone, 572 N.W.2d at 730. We conclude that it does not.

Appellant argues Minnesota’s 2023 cannabis legislation reflects the state’s

understanding that “possession of cannabis is neither an inherently dangerous activity nor

one of particular public policy concern requiring categorical prohibition or

criminalization.” Indeed, if the possession of up to two pounds of cannabis flower by an

adult in their own home is expressly permitted by statute, it is difficult to discern how

merely possessing more than the authorized amount would constitute a “serious breach[]

in the social fabric which threaten[s] grave harm to persons or property” such that our

analysis should be restricted to the narrow, criminalized conduct rather than the broad

conduct of possessing cannabis flower. Stone, 572 N.W.2d at 731. And the state does not

present a compelling argument otherwise.

At oral argument, the state asserted that heightened public-policy concerns are

implicated by the specific facts of appellant’s case, which indicate that he was not

possessing cannabis flower in his home or on his person but in the shop with the intention

to sell it unlawfully. This argument is unpersuasive, however, because the possession of

cannabis with the intent to sell it constitutes a distinct crime from the possession of

8
cannabis alone and is separately criminalized in statute. See Minn. Stat. §§ 152.0264

(defining cannabis sale crimes); .01, subd. 15(a) (defining “sell” for purposes of chapter

152 as including possession with the intent to sell) (2024). Of importance here is that

appellant was not charged with a sale crime under section 152.0264, but rather with a

possession offense under section 152.0263, subdivision 1. Had the state chosen to charge

appellant with a sale crime on the theory that he intended to sell the cannabis flower he was

found to be in possession of, then any policy distinctions between the possession and sale

of cannabis would become relevant and perhaps compel a different result. But because the

state charged appellant with only the possession of an unlawful amount of cannabis flower,

the state’s subjective belief as to the purpose of his possession in this instance does not

alter the nature of the specific conduct criminalized by the charged statute, which is

possession.

Because we cannot identify any “substantially different or heightened public policy

concerns” that would arise solely on the basis of the quantity of cannabis flower possessed,

we conclude that the proper focus of the Cabazon analysis is on the broad conduct of

cannabis-flower possession and not on the narrow conduct of possessing an unlawful

quantity of cannabis flower.

B. Because possession of cannabis flower is generally permitted in
Minnesota, the statute is civil/regulatory and thus unenforceable against
appellant.

Having determined that the broad conduct of possessing cannabis flower is the

proper focus of the Cabazon test, we turn to the question of whether the statute under which

appellant is charged is criminal/prohibitory or civil/regulatory in nature. See Cabazon, 480

9
U.S. at 209-10; see also Stone, 572 N.W.2d at 730. In doing so, we must analyze whether

the intent of the law is to generally permit the conduct subject to regulation, or if it is

intended to generally prohibit the conduct. See Stone, 572 N.W.2d at 729.

Historically, the possession of cannabis or cannabis products was not permitted in

any part of the state and, consequently, the laws proscribing such possession were deemed

to be enforceable under Public Law 280’s grant of criminal jurisdiction. See LaRose, 673

N.W.2d at 164 (“The possession of marijuana, like other illegal drugs in Minnesota, is

criminal/prohibitory, not civil/regulatory.”). As noted, however, the statutory framework

on which this conclusion was based was significantly altered in 2023 by legislation which

expressly authorized the possession of certain quantities and types of cannabis products by

adults. See 2023 Minn. Laws ch. 63, art. 1, § 9, at 2707-10. And enforcement of the

statute’s quantity limitations (for amounts up to ten kilograms in the case of cannabis

flower)1 was separately provided for in concurrently enacted legislation that distinguishes

cannabis-possession crimes from Minnesota’s general controlled-substance-crime

statutory scheme. See Minn. Stat. § 152.0263.

In addition, 2023 legislation acknowledged “the sovereign right of Minnesota Tribal

governments to regulate the cannabis industry and address other matters of cannabis

regulation related to the internal affairs of Minnesota Tribal governments or otherwise

within their jurisdiction.” 2023 Minn. Laws ch. 63, art. 6, § 2, at 2863 (codified at Minn.

1
The possession of more than ten kilograms of cannabis flower remains criminalized by
Minn. Stat. §§ 152.021-.023 (2024), which defines first-, second-, and third-degree
controlled substance crimes.

10
Stat. § 3.9228, subd. 2(a) (2024)). It was thus clearly also within the contemplation of the

legislature that Minnesota’s Tribes would retain their regulatory sovereignty concerning

cannabis possession and sale. Indeed, the White Earth Band subsequently adopted the

White Earth Band of the Minnesota Chippwea Tribe’s Adult-Use Cannabis Code, which

created a regulatory framework for the possession and sale of cannabis on the White Earth

Reservation. Among the stated purposes of this code is to “[e]nsure that members of the

White Earth Band, members of other federally recognized tribes, Minnesota residents, and

other persons have the ability to lawfully obtain, purchase, receive, possess, and use Adult-

use Cannabis” in accordance with its terms. See White Earth Band of the Minnesota

Chippewa Tribe Adult-Use Cannabis Code § 1.02(1)(c).

Accordingly, given the state’s affirmative legalization of possession by adults of

certain quantities and forms of cannabis, the state’s authorization of tribal cannabis

compacts to permit independent regulation of the cannabis industry on Tribal land, and the

White Earth Band’s implementation of its own cannabis-related code, we are satisfied that

the intention of the legislature was to generally permit the possession of cannabis flower

by adults, subject to regulation, and that LaRose and St. Clair have been superseded by

statute as to the possession of those cannabis products specifically authorized by section

342.09, subdivision 1. Moreover, because the possession of cannabis flower alone “clearly

does not violate the public criminal policy of the state,” this is not a close case and “there

is no need to apply the shorthand public policy test.” Stone, 572 N.W.2d at 731.

It bears noting as well that, although the possession of cannabis flower is regulated

by means of criminal penalties, this is not dispositive to our analysis. See Cabazon, 480

11
U.S. at 202-03 (“That an otherwise regulatory law is enforceable (as here) by criminal as

well as civil means does not necessarily convert it into a criminal law within Pub. L. 280’s

meaning.”). Here, notwithstanding the manner in which the conduct is regulated, we

cannot ignore the clear language of the legislation that specifically permits the possession

of cannabis flower by adults and that allows Minnesota’s Tribes to implement their own

regulatory structures concerning cannabis possession, and we are thus compelled to regard

these criminal provisions as regulatory rather than punitive.

We therefore hold that, because Minnesota Statutes section 152.0263, subdivision

1(1), is civil/regulatory in nature, the State of Minnesota lacks jurisdiction under Public

Law 280 to enforce it against a member of the White Earth Band for conduct occurring

within the territorial boundaries of the White Earth Reservation. Our holding is consistent

with the framing of the issue and decision by our supreme court in Stone, as well as the

presentation of the issue by the parties. See Stone, 572 N.W.2d at 731 (holding that the

laws involved in the case were civil/regulatory and therefore “the state lacks jurisdiction

under Public Law 280 to enforce them against members of the White Earth Band of

Chippewa for conduct occurring within the boundaries of their reservation”).

II. We decline to reach the issue of whether cannabis possession is a right
protected by the 1855 Treaty between the Ojibwe and the United States.

Because we conclude that the state lacks jurisdiction to prosecute appellant for a

violation of Minnesota Statutes section 152.0263, subdivision 1(1), pursuant to Public Law

280, we need not address the question of whether appellant’s possession of cannabis flower

is a right separately protected by treaty.

12
 DECISION

The criminalization of the possession of cannabis flower under Minnesota Statutes

section 152.0263, subdivision 1(1) is a civil/regulatory statute, which the state lacks

jurisdiction to enforce against an enrolled member of the White Earth Band of Ojibwe for

possession occurring on the White Earth Reservation. As such, the district court’s order

denying appellant’s motion to dismiss the charge against him is reversed.

Reversed.

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WHEELOCK, Judge (concurring)

Although I concur in much of the reasoning and the result reached by the majority,

I write separately for two primary reasons. First, I query whether it is time for the supreme

court to reconsider its decision in State v. Stone, 572 N.W.2d 725 (Minn. 1997). I would

conclude that Stone creates an analytical framework that is in tension with the United States

Supreme Court’s decision in California v. Cabazon Band of Mission Indians, 480 U.S. 202

(1987), as demonstrated by Ysleta Del Sur Pueblo v. Texas, 142 S. Ct. 1929 (2022).

Second, I would not limit today’s holding to White Earth tribal members and the White

Earth Tribe’s reservation. I would instead frame today’s holding to apply to all of the

federally recognized tribes within the State of Minnesota that are subject to Public Law

280.

I begin with a discussion of tribal sovereignty—a discussion that is necessary before

a question of state jurisdiction over tribes can be resolved. I then provide an overview of

the comprehensive legislation passed in 2023 that established new state policy on cannabis

use, possession, and sale, and I identify where I differ from the majority in how to apply

the Cabazon test to the state statute under which Thompson was charged. Finally, I address

concerns with Stone’s articulation of the Cabazon test and with the appearance of a

limitation in the majority opinion of today’s holding to a specific tribe and reservation.

Tribal Sovereignty and Public Law 280

An understanding of the history of the relationship between tribes and the United

States since contact and the formation of the United States is critical to fully consider

questions of Indian law because that history has shaped federal policy and laws with respect

CS-1
to tribes and has alternated between widely different views of tribes throughout that history.

See Cohen’s Handbook of Federal Indian Law § 1.04[3], at 5 (Nell Jessup Newton & Kevin

K. Washburn, eds., 2024) [hereinafter Cohen’s Handbook] (explaining that “[t]he history

of federal Indian law is crucial to understanding the field” because, although “[t]he United

States has always recognized tribal sovereignty,” it “has pursued policies over time that

appear to contradict one another,” a “vacillation [that] has led to conflicting lines of

precedent and to limitations on tribal sovereignty resulting from past intrusions” that

include repudiated policies).2 Thus, any question of the jurisdiction of Indian tribes, the

federal government, and the states must be resolved in light of that foundation.

Indian tribes are “separate sovereigns” that preexisted the United States

Constitution. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978); United States v.

Wheeler, 435 U.S. 313, 322-30 (1978) (stating that a tribe’s power to prosecute its members

for crimes derives from inherent sovereignty that is not delegated by the federal

government). Tribal sovereignty is neither dependent on nor subordinate to state

governments. Stone, 572 N.W.2d at 728 (citing Cabazon, 480 U.S. at 207). Because Indian

tribes “remain separate sovereigns,” they “retain their historic sovereign authority” except

when abrogated by Congress. Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788

(2014) (quotations omitted). State governments may assert jurisdiction and enforce their

laws over tribal members on their reservations only when and to the extent Congress has

2
More than 570 tribes are federally recognized by the United States, see Indian Entities
Recognized by and Eligible to Receive Services from the United States Bureau of Indian
Affairs, 89 Fed. Reg. 99,899 (Dec. 11, 2024), each with a distinct history, language, and
cultural, societal, and governmental practices.
CS-2
so provided. Cabazon, 480 U.S. at 207. States do not have the authority to abrogate tribal

sovereignty. McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 168 (1973) (“[T]he

policy of leaving Indians free from state jurisdiction and control is deeply rooted in the

Nation’s history.” (quotation omitted)).

It is crucial that courts and legal practitioners understand that tribes have inherent

sovereignty that existed before contact with European explorers—this includes rights,

powers, and authority that have not been relinquished or abrogated—and that tribal rights

are not rights given to the tribes by federal or state governments. See Cohen’s Handbook,

supra, § 18.02[1][a], at 1125 (explaining that “tribal nations are ‘distinct, independent

political communities, retaining their original natural rights, as the undisputed possessors

of the soil, from time immemorial’” (quoting Worcester v. Georgia, 31 U.S. 515, 559

(1832)). In the first chapter on foundational principles in the field of federal Indian law,

Cohen’s Handbook observes the following:

Hundreds of Indian tribes governed the entire land mass of the
of the present-day United States prior to its creation. The
United States asserted authority over these sovereign nations
through a colonial process that was partly negotiated and partly
imposed. Federal Indian law mediates the resulting
intergovernmental relations among the Indian nations, the
United States, and the states of the Union.

Cohen’s Handbook, supra, § 1.01, at 1 (footnote omitted).

Applying this lens, it becomes clear that, to understand the extent of the sovereign

rights tribes retain and the extent to which Congress has authorized states to assert

CS-3
jurisdiction over tribal members on their reservations, we must examine relevant acts of

Congress and, at times, relevant treaties.3

In 1953, Congress passed Public Law 280, granting Minnesota and five other states

broad criminal and limited civil jurisdiction over Indian country within each state. Pub. L.

No. 83-280, 67 Stat. 588 (1953) (codified as amended at 18 U.S.C. § 1162 (2018)). Of the

11 federally recognized tribes located within Minnesota, nine are currently subject to

Public Law 280.4 Under section 2 of Public Law 280, Congress authorized Minnesota to

3
We do not reach the merits of Thompson’s arguments based on his reserved treaty rights
under the Treaty of Washington, 1855; however, when considering legal issues involving
treaties between the United States and Indian tribes, accuracy and an understanding of the
specific historical context of the treaty at issue are again critical. Further, I note here that
the state did not address Thompson’s treaty-rights argument in its principal brief, and at
oral argument, counsel for the state said, “If the court were to rule that he has a treaty right,
. . . we would defer to the court with that.” The district court did not find that Thompson
had a reserved treaty right to possess cannabis—a plant medicine; however, in its
discussion of Thompson’s argument, it misstated the law when it said that any treaty rights
belong only to the tribe as a whole. “It is well settled . . . that an individual Indian may
assert usufructuary rights in a criminal prosecution.” United States v. Brown, 777 F.3d
1025, 1032 (8th Cir. 2015); see also United States v. Dion, 476 U.S. 734, 738 n.4 (1986)
(explaining that “treaty rights can be asserted by . . . an individual member of the Tribe”);
United States v. Winans, 198 U.S. 371, 381 (1905) (explaining that “negotiations were with
the tribe” but treaties “reserved rights . . . to every individual Indian, as though named
therein”). Although treaty rights are held communally by a tribe, “[e]ach tribal member
has the right to exercise the reserved rights, subject to tribal regulation, and to sue to enforce
those rights.” Cohen’s Handbook, supra, § 20.03[1], at 1292 (emphasis added) (footnote
omitted) (citing Sohappy v. Smith, 302 F. Supp. 899, 904 (D. Or. 1969)); see also
Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 195-200 (1999) (holding
that “[t]he entire 1855 Treaty, in fact, is devoid of any language expressly mentioning—
much less abrogating—usufructuary rights”—it was merely a land-purchase treaty).
4
There are 11 federally recognized Indian tribes within the state. See Indian Entities
Recognized by and Eligible to Receive Services from the United States Bureau of Indian
Affairs, 89 Fed. Reg. 99,899 (listing federally recognized tribes). However, Public
Law 280 expressly excepted the Red Lake Reservation. 18 U.S.C. § 1162(a). And in 1973,
Minnesota approved the retrocession of state criminal jurisdiction on the Bois Forte
CS-4
exercise jurisdiction over certain criminal matters on Indian reservations.5 See 18 U.S.C.

§ 1162(a) (codifying Pub. L. No. 83-280, § 2). And under section 4 of Public Law 280,

Congress authorized Minnesota to exercise limited jurisdiction over civil causes of action

between private parties arising on Indian reservations, but it did not grant the state general

civil regulatory authority over tribal members on their reservations. Stone, 572 N.W.2d at

729 (citing Bryan v. Itasca County, 426 U.S. 373, 384-88 (1976)); see also 28 U.S.C.

§ 1360 (2018) (codifying Pub. L. No. 83-280, § 4).

In 1987, the Supreme Court in Cabazon established a test for courts to apply to

determine whether a state may enforce its laws in Indian country, distinguishing between

Reservation. See 1973 Minn. Laws ch. 625, § 3, at 1500, 1501 (retroceding state criminal
jurisdiction over the Bois Forte Reservation to the federal government); see also
Acceptance of Retrocession of Jurisdiction, 40 Fed. Reg. 4026 (Jan. 15, 1975) (accepting
retrocession of state jurisdiction).
5
Over 50 years later, Congress passed the Tribal Law and Order Act of 2010 (TLOA),
which created a mechanism for tribal governments with reservations in Public Law 280
states to request either that the federal government have concurrent criminal jurisdiction
with the state or resume federal criminal jurisdiction without the state also having criminal
jurisdiction. Pub. L. No. 111-211, § 221(a)(2), 124 Stat. 2261, 2271 (2010). In Minnesota,
the White Earth Band was granted concurrent jurisdiction, which took effect on June 1,
2013, Press Release, U.S. Dep’t of Just., United States to Accept Concurrent Jurisdiction
Over White Earth Reservation in Minnesota (Mar. 15, 2013),
https://www.justice.gov/archives/opa/pr/united-states-accept-concurrent-jurisdiction-
over-white-earth-reservation-minnesota [https://perma.cc/C4LJ-PPM8], and the Mille
Lacs Band of Ojibwe was granted concurrent jurisdiction, which took effect on January 1,
2017, United States Assumption of Concurrent Federal Criminal Jurisdiction, 81 Fed. Reg.
4335, 4335-36 (Jan. 26, 2016). When a state has concurrent jurisdiction with the federal
government, the state’s criminal jurisdiction is not altered. Tribal members are still subject
to state and tribal criminal laws. The difference is that members of federally recognized
tribes may be subject to federal prosecution for certain crimes in addition to any state or
tribal prosecution that occurs. See 25 U.S.C § 1321(a) (2018) (assumption by state of
criminal jurisdiction); 28 C.F.R. § 50.25 (2024) (assumption of concurrent federal criminal
jurisdiction).
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laws that are “civil/regulatory” and laws that are “criminal/prohibitory.” 6 Cabazon,

480 U.S. at 209. Laws that are civil/regulatory may not be enforced by states against tribal

members on their reservations, while laws that are criminal/prohibitory may be enforced

by states against tribal members on their reservations. Id. The Supreme Court further

explained that the distinction between civil/regulatory and criminal/prohibitory is not

subject to a bright-line rule and that “[t]he applicable state laws governing an activity must

be examined in detail before they can be characterized as regulatory or prohibitory.” Id. at

210, 211 n.10. It also stated, “The shorthand test is whether the conduct at issue violates

the State’s public policy.” Id. at 209.

6
The complex jurisdictional landscape that exists at the intersection of federal, tribal, and
state law is often referred to as a jurisdictional maze because the determination of which
sovereign or sovereigns have jurisdiction over an incident or set of circumstances is
dependent upon the tribal status of the people involved (whether someone is a tribal
member or can be identified as an “Indian”), the status of the land on which it occurred,
and the nature of the issues that have arisen. See State v. Roy, 761 N.W.2d 883, 891 (Minn.
App. 2009) (“[T]he regulation of nonmember Indians warrants different consideration than
does regulation of member Indians . . . .” (quotation omitted)), rev. denied (Minn. May 19,
2009); United States v. John, 437 U.S. 634, 647-49 (1978) (looking first to the “situs of the
alleged offense” and whether the site constituted Indian country to answer the question of
jurisdiction). Thus, to properly navigate the jurisdictional maze, we must be precise in how
we describe the facts of any case that involves tribes, tribal members, and tribal lands.
Here, it is relevant that Thompson is an enrolled tribal member and that the incident
occurred on the White Earth reservation, which is part of “Indian country.” See 18 U.S.C.
§ 1151 (2018) (defining the term “Indian country”); see also John, 437 U.S. 634 at 648
(explaining that “Indian country” is defined broadly to encompass the three distinct
categories of land in U.S.C. § 1151); Cabazon, 480 U.S at 207 n.5 (instructing that the term
“Indian country” applies to questions of criminal and civil jurisdiction); Negonsott v.
Samuels, 507 U.S. 99, 102 (1993) (“Criminal jurisdiction over offenses committed in
Indian country, is governed by a complex patchwork of federal, state, and tribal law.”
(quotations omitted)).
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 Ten years later, in Stone, the Minnesota Supreme Court created a two-step approach

for applying the Cabazon test. Stone, 572 N.W.2d at 730. In the first step, a court must

determine whether the focus of the Cabazon test is “broad conduct” or “narrow conduct.”

Id. “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. In the second step, the court

applies the Cabazon test to determine if the law is criminal/prohibitory or civil/regulatory.

Id.

With this understanding of the legal landscape created by Public Law 280, Cabazon,

and Stone, I turn to recent state legislation regarding cannabis in Minnesota.

The 2023 Cannabis Law

In 2023, Minnesota passed the Cannabis Finance and Policy Law (the 2023 cannabis

law), establishing a new comprehensive state regulatory framework. 2023 Minn. Laws

ch. 63, art. 1, at 2685-798 (codified as amended at Minn. Stat. §§ 342.01-.82 (2024)). The

2023 cannabis law legalized recreational adult use and possession of cannabis, including

making it legal to possess up to two ounces of cannabis flower in public and up to two

pounds at home. See Minn. Stat. § 342.09, subd. 1(a)(2)-(3). Private individuals may grow

and gift their own cannabis. Id., subds. 1(a)(6), 2. And commercial cannabis sales

managed by the state and tribal governments are allowed, subject to the regulatory and

licensing frameworks established in the 2023 cannabis law. See, e.g., Minn. Stat. § 342.02

(establishing the office of cannabis management and tasking this office with the

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development and implementation of operational and regulatory systems to oversee the

cannabis industry).

The 2023 cannabis law explicitly addressed Indian tribes’ sovereign authority in the

provision that governs tribal-state cannabis compacts:

The state of Minnesota acknowledges the sovereign right of
Minnesota Tribal governments to regulate the cannabis
industry and address other matters of cannabis regulation
related to the internal affairs of Minnesota Tribal governments
or otherwise within their jurisdiction, without regard to
whether such Tribal government has entered a compact
authorized by this section.

Minn. Stat. § 3.9228, subd. 2(a) (2024) (emphasis added). Tribes may voluntarily negotiate

compacts with the state. Id., subds. 2, 3 (2024). Thus, the legislature not only

acknowledged tribal sovereignty, but took steps to encourage tribes to exercise their

sovereign authority in the area of cannabis regulation.

The White Earth Band’s decision to exercise its inherent sovereignty and adopt its

code demonstrates that the state legislature’s intentions are coming to fruition; however,

the White Earth Band’s decision whether to adopt cannabis laws is irrelevant to the

determination of whether a state statute is civil/regulatory or criminal/prohibitory. As the

state legislature recognized, tribes have the sovereign right to regulate cannabis, and this

right is not abrogated merely because a tribe has not enacted a code. Pursuant to Cabazon

and Stone,7 it is the applicable state laws that must be examined in detail to determine

7
In the Stone opinion’s recitation of facts, the supreme court stated that, at the time of the
offenses at issue in that case, White Earth did not have a “comprehensive” traffic code but
that one was adopted shortly after the offenses occurred. 572 N.W.2d at 728. However,
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whether Public Law 280 applies—not the tribe’s law. Cabazon, 480 U.S. at 211 n.10 (“The

applicable state laws governing an activity must be examined in detail before they can be

categorized as regulatory or prohibitory.” (emphasis added)). If anything, these provisions

of the 2023 cannabis law may provide insight into the legislature’s views of whether the

state’s cannabis laws are civil or criminal in nature. Thus, I disagree with the majority

opinion’s inclusion of the White Earth Band’s implementation of its own cannabis-related

code as relevant to our determination that the statute at issue is civil/regulatory.

Civil/Regulatory Nature of the 2023 Cannabis Law

Given this comprehensive and robust legislation and that the narrow conduct here—

possession of cannabis—does not present substantially different or heightened

public-policy concerns than the broad conduct of cannabis use, possession, and sale, and

applying the Cabazon test to the state statute at issue in this case, I agree with the majority

opinion that the statute is civil/regulatory.

I disagree, however, with any suggestion that a determination of whether the statute

is civil/regulatory or criminal/prohibitory would be different if a different type of offense

had been charged, such as possession with intent to sell. At oral argument, the state

asserted that heightened public-policy concerns are implicated by specific facts of

appellant’s case that indicate he was possessing cannabis flower in his shop with the

intention to sell it unlawfully. But counsel for the state also said he believed that, if

Thompson had a license of some kind for the cannabis, the statute governing his conduct

that fact was not essential to the legal reasoning or decision in Stone; nor does it alter what
may be considered when applying the United States Supreme Court’s Cabazon test.
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would be civil/regulatory. Thus, even the state’s characterization of Thompson’s conduct

is about compliance with a regulation—sale without a license as opposed to sale with a

license—and there is no “serious breach[] in the social fabric which threaten[s] grave harm

to persons or property” that would require analyzing a sale charge under the

narrow-conduct prong of Stone. 572 N.W.2d at 730.

Stone’s Articulation of the Cabazon Test

As an intermediate appellate court, we are tasked with correcting errors and bound

by precedent. Lake George Park, L.L.C. v. IBM Mid-Am. Emps. Fed. Credit Union,

576 N.W.2d 463, 466 (Minn. App. 1998) (“This court, as an error correcting court, is

without authority to change the law.”), rev. denied (Minn. June 17, 1998). I write

separately, in part, to question whether the supreme court should revisit Stone because it is

in tension with Cabazon. I am concerned, particularly in light of intervening United States

Supreme Court precedent, that the two-step process established in Stone does not align

with the straightforward inquiry Cabazon requires and instead encourages an end run

around the Cabazon test.

Stone and the two-part test it created are premised on the idea that the Supreme

Court “did not clearly state whether ‘the conduct at issue’ to be analyzed is the broad

conduct, such as gambling, or the narrow conduct, such as bingo.” Stone, 572 N.W.2d at

729. But revisiting this premise may reveal that it is at odds with the Supreme Court’s

analysis of the conduct at issue in Cabazon.

The Supreme Court in Cabazon did not analyze only the narrow conduct at issue in

that case—“high stakes, unregulated bingo”—which was prohibited under California penal

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code; rather, it analyzed the conduct at issue from a broad perspective—in the language of

its decision, the activity at issue—which, it determined, was gambling. 480 U.S. at 210-11

& n.10. Cabazon’s analysis of the conduct at issue was clear, both in how the Supreme

Court articulated it and in how it applied the test. Id. at 211 n.10 (“[T]he applicable state

laws governing an activity must be examined in detail before they can be characterized as

regulatory or prohibitory.” (emphasis added)). The Supreme Court reviewed the California

Government Code, which allowed the state to operate a state lottery, and observed that

California encouraged its citizens to participate. Id. at 210. It also reviewed the California

Business and Professions Code, which permitted horse-race betting, and then it reviewed

the penal code at issue, noting that certain games were prohibited and that games not

enumerated were permissible. Id. After concluding that California regulates rather than

prohibits gambling in general and bingo in particular, the Supreme Court appears to have

rejected the narrow-conduct test that the Minnesota Supreme Court later adopted in Stone.

The Supreme Court explained that focusing on the criminal law at hand—which

Stone characterized as the narrow conduct—was misguided because “the distinction

between § 2 and § 4 of [Public Law 280] could easily be avoided and total assimilation

permitted.”8 Id. at 211. Based on this reasoning, the Supreme Court rejected California’s

8
In elucidating the civil/regulatory-versus-criminal/prohibitory test, the Supreme Court
recalled its decision in Bryan, 426 U.S. 373, in which it recognized a dichotomy between
regulatory and prohibitory laws and rejected the notion that Public Law 280 granted states
general civil regulatory power over Indian reservations. Cabazon, 480 U.S. at 208.
Immediately before setting forth the holding in Cabazon, the Court described the careful
balance it struck when recognizing that distinction, specifically explaining that
“Congress’s primary concern in enacting Pub. L. 280 was combating lawlessness on
reservations,” that Public Law 280 “plainly was not intended to effect total assimilation of
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position that it should look at the narrow conduct of “high stakes, unregulated bingo” rather

than reviewing state laws governing gambling as a whole. Id.

Recently, the Supreme Court addressed the distinction between regulatory and

prohibitory laws in Ysleta Del Sur Pueblo, 142 S. Ct. 1929. In that case, the Ysleta del Sur

Pueblo, a federally recognized tribe with a reservation in Texas, engaged in gaming

activity—specifically, bingo—that violated state law but not federal law, and the state filed

a lawsuit seeking to enjoin the tribe from continuing its bingo operations. Ysleta, 142 S.

Ct. at 1934-37. The parties disagreed about the interpretation of a federal law,9 passed just

six months after the Supreme Court issued its decision in Cabazon, that also used a

regulatory-prohibitory distinction to prescribe the extent to which tribal gaming is allowed

on the Ysleta del Sur Pueblo’s reservation and its other lands. Ysleta, 142 S. Ct. at 1935-37.

The federal law, in part, expressly provided that “[a]ll gaming activities which are

prohibited by the laws of the State of Texas are hereby prohibited on the reservation and

on lands of the tribe” and also stated that “[n]othing in this section shall be construed as a

grant of civil or criminal regulatory jurisdiction to the State of Texas.” Id. at 1938. The

Supreme Court observed that “the most striking feature” about the statutory language “is

its dichotomy between prohibition and regulation” because “[t]he implication that

Indian tribes into mainstream American society,” and that “a grant to States of general civil
regulatory power over Indian reservations would result in the destruction of tribal
institutions and values.” Id. In my view, a proper application of the Cabazon test therefore
acknowledges the balance the Supreme Court intentionally struck.
9
Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration
Act, Pub. L. No. 100-89, 101 Stat. 666 (1987).
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Congress drew from Cabazon and meant for us to apply its same prohibitory/regulatory

framework here seems almost impossible to ignore.” Id.

The Supreme Court then interpreted the terms “regulate” and “prohibit” and

concluded that the provision barring gambling that was “prohibited” by the state covered

only those forms of gambling that were outright banned by the state. Id. The Supreme

Court reasoned that to “prohibit something means to ‘forbid,’ ‘prevent,’ or ‘effectively

stop’ it, or ‘make [it] impossible,’” in contrast with “to regulate,” which “is usually

understood to mean to ‘fix the time, amount, degree, or rate’ of an activity ‘according to

rule[s],’” and that, as such, the two words frequently are ‘‘not synonymous.” Id. (first

quoting Webster’s Third New International Dictionary 1813, 1913 (1986); and then

quoting Black’s Law Dictionary 1212 (6th ed. 1990)). In doing so, the Court focused its

analysis on the broad conduct or activity that was the subject of the state statute. The Texas

laws at issue in Ysleta permitted some forms of bingo, subject to regulation, yet the State

of Texas argued they were prohibitory because deviations from the restrictions on time,

place, and manner were criminal violations. Id.10

10
The Court bolstered its statutory-interpretation analysis by addressing canons of
interpretation and “contextual clues”:

Even if fair questions remain after a look at the ordinary
meaning of the statutory terms before us, important contextual
clues resolve them. Recall that Congress passed the Act just
six months after this Court handed down Cabazon. In that
decision, the Court interpreted Public Law 280 to mean that
only ‘‘prohibitory’’ state gaming laws could be applied on the
Indian lands in question, not state ‘‘regulatory’’ gaming laws.
The Court then proceeded to hold that California bingo laws—
laws materially identical to the Texas bingo laws before us
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 The Supreme Court rejected the state’s position, highlighting its reasoning in

Cabazon that “‘an otherwise regulatory law’ is not enforceable under Public Law 280

merely because a State labels it ‘criminal.’” Id. at 1935 (quoting Cabazon, 480 U.S. at

211). The Supreme Court concluded that the Texas statutes were civil/regulatory and the

state could not enforce them against the Tribe on its land. Id. at 1938.

Our supreme court did not have the benefit of the Supreme Court’s decision in Ysleta

when it decided Stone and has not had occasion to revisit Stone since Ysleta was decided.

And the intervening precedent of Ysleta is instructive as to the continued viability of

today—fell on the regulatory side of the ledger. Just like Texas
today, California heavily regulated bingo, allowing it only in
certain circumstances (usually for charity). Just like Texas,
California criminalized violations of its rules. Still, because
California permitted some forms of bingo, the Court concluded
that meant California did not prohibit, but only regulated, the
game.

For us, that clinches the case. This Court generally
assumes that, when Congress enacts statutes, it is aware of this
Court’s relevant precedents. And at the time Congress adopted
the Restoration Act, Cabazon was not only a relevant
precedent concerning Indian gaming; it was the precedent. In
Cabazon, the Court drew a sharp line between the terms
prohibitory and regulatory and held that state bingo laws very
much like the ones now before us qualified as regulatory rather
than prohibitory in nature. We do not see how we might fairly
read the terms of the Restoration Act except in the same light.
After all, “[w]hen the words of the Court are used in a later
statute governing the same subject matter, it is respectful of
Congress and of the Court’s own processes to give the words
the same meaning in the absence of specific direction to the
contrary.”

Id. at 1940 (emphasis added) (citations omitted) (quoting Williams v. Taylor, 529 U.S. 420,
434 (2000)).
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Stone’s analysis of Cabazon. Logically, if the distinction between state

criminal/prohibitory laws and state civil/regulatory laws could be properly ascertained

merely by looking at the narrow conduct or the fact that the specific statute being analyzed

is criminal, penal, or prohibitory, there would be no need for the Cabazon test. Ysleta

explains that circular reasoning results when the narrow conduct addressed by the statute

is the focus of the analysis:

No one questions that Texas ‘regulates’ bingo by fixing the
time, place, and manner in which the game may be conducted.
The State submits only that, in some sense, its laws also
‘prohibit’ bingo—when the game fails to comply with the
State’s time, place, and manner regulations. But on that
reading, the law’s dichotomy between prohibition and
regulation collapses. Laws regulating gaming activities
become laws prohibiting gaming activities.

Id. at 1939. Because the narrow conduct that is the subject of a state statute is prohibited

and thus presumably is against the public policy of the state, it is difficult to imagine a

scenario in which review of the narrow conduct will result in a conclusion that the state

statute is not criminal/prohibitory in nature. I believe that this is precisely the result the

Supreme Court was trying to avoid.

For these reasons, the narrow-conduct analysis articulated in Stone appears to be in

tension with the analysis that Cabazon requires. Given the clarity provided in Ysleta, it is

appropriate for our supreme court to revisit its decision in Stone.

Finally, I end where I began—convinced that today’s holding is not limited to the

White Earth Band and the White Earth Reservation. Based on an analysis under Cabazon,

the state statute prohibiting possession of cannabis over a specific amount is

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civil/regulatory in nature, and this distinction does not change depending on the tribe

involved. Indeed, we granted discretionary review because “a decision on the jurisdiction

of the state to enforce Minnesota’s cannabis-possession laws and on the extent of the rights

reserved under applicable treaties will have an immediate statewide impact on all Tribes in

Minnesota subject to Public Law 280 and on their members.” Because it would otherwise

be illogical and antithetical to judicial economy and our duty to deliver justice, I would

frame today’s holding more broadly. Such framing avoids forcing other tribes or their

members in Minnesota to relitigate this exact issue. It is not just possible, but likely, that

another member of a different tribe on a different reservation will be arrested,

notwithstanding that possession of cannabis is regulatory in nature and falls within the

Tribes’ regulatory authority. Our decision today applies in equal measure to all Indian

tribes in Minnesota that are subject to Public Law 280.

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