This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A16-0199

State of Minnesota,

Respondent,

vs.

Tressa Lee Bissonette,

Appellant.

Filed October 11, 2016

Affirmed

Larkin, Judge

Cass County District Court

File No. 11-CR-14-1686

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Christopher J. Strandlie, Cass County Attorney, Jeanine R. Brand, Assistant County 

Attorney, Walker, Minnesota (for respondent)

Frank Bibeau, Bibeau Law Office, Deer River, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Bratvold, 

Judge. 
2

U N P U B L I S H E D O P I N I O N

LARKIN, Judge

On appeal from her conviction of gross-misdemeanor child neglect, appellant argues 

that the district court erred by denying her motion to dismiss for lack of jurisdiction. 

Because Public Law 280 expressly grants the State of Minnesota jurisdiction over the 

offense, we affirm. 

FACTS

Respondent State of Minnesota charged appellant Tressa Lee Bissonette with one 

count of gross-misdemeanor neglect of a child under Minn. Stat. § 609.378, subd. 1(a)(1) 

(2014). According to the complaint, on August 21, 2014 at approximately 10:21 p.m., a

law-enforcement officer found a four- to five-year-old child riding a bicycle unsupervised 

on County Road 75, outside of a bar in Cass County.1 The complaint alleged that the 

child’s mother, Bissonette, was passed out in the family’s home a quarter mile away. An 

officer “had to yell at [Bissonette] to wake her up,” observed that she had slurred speech 

and poor balance, and smelled an odor of alcohol on her breath. Bissonette admitted that 

she had been drinking all day at a wedding and s aid that she did not know how long 

she had been passed out. 

Bissonette moved to dismiss the child-neglect charge, arguing that the state lacked

jurisdiction over the offense because the child-neglect-and-endangerment statute “is a 

civil/regulatory law” and therefore does not fall under the express federal grant of criminal 

 

1 The parties do not dispute that the conduct at issue occurred on the Leech Lake 

Reservation. 
3

jurisdiction to Minnesota over enrolled tribal members on reservations under Public Law 

280. The district court denied Bissonette’s motion. Bissonette stipulated to the 

prosecution’s case under Minn. R. Crim. P. 26.01, subd. 4, and the district court found her 

guilty of neglect of a child. Bissonette appeals. 

D E C I S I O N

I.

“Whether the state has jurisdiction to enforce its laws with respect to an Indian 

charged with an offense committed on [her] reservation is an issue that [appellate courts] 

review de novo without considering the decisions of the lower courts.” State v. Busse, 644 

N.W.2d 79, 82 (Minn. 2002).

We begin our de novo review with the state’s argument that the factual record does 

not support Bissonette’s jurisdictional challenge. The state asserts that Bissonette did not 

present evidence establishing that she “is an Indian” or “works in the Leech Lake 

Reservation” and argues that “[b]ecause there is no record of [Bissonette] being Native 

American, an enrolled member of any tribe, or that Leech Lake is within federal 

jurisdiction, nearly all of [Bissonette’s] arguments facially fail.” 

Because the state did not attack the factual basis for Bissonette’s jurisdictional 

challenge in district court, the district court did not consider or determine whether the 

factual record supported the challenge. An appellate court generally will not decide issues 

that were not raised and determined in the district court. Roby v. State, 547 N.W.2d 354, 

357 (Minn. 1996). However, an appellate court has discretion to consider issues for the 

first time on appeal “when the interests of justice require their consideration and addressing 
4

them would not work an unfair surprise on a party.” State v. Sorenson, 441 N.W.2d 455, 

457 (Minn. 1989). 

Here, the state opposed Bissonette’s jurisdictional challenge on the merits in district 

court, seemingly accepting the factual basis for the challenge. Bissonette cannot 

supplement the factual record on appeal. See State v. Colvin, 645 N.W.2d 449, 453 (Minn. 

2002) (“Appellate courts have no . . . business finding facts . . . .”). Under the 

circumstances, allowing the state to attack the factual basis for Bissonette’s jurisdictional 

challenge for the first time on appeal would work an unfair surprise on Bissonette. And 

because we ultimately conclude that Bissonette’s jurisdictional challenge fails on the 

merits, we focus our review on the substantive merits of the challenge.

II.

“State law does not generally apply to tribal Indians on their reservations absent 

express consent from Congress.” Busse, 644 N.W.2d at 82. In Public Law 280, Congress 

expressly granted Minnesota “jurisdiction over offenses committed by or against Indians” 

on reservations within Minnesota as well as limited jurisdiction “over civil causes of action 

between Indians or to which Indians are parties” that arise on reservations within 

Minnesota. 18 U.S.C. § 1162(a) (2012) (providing that Minnesota “shall have jurisdiction 

over offenses committed by or against Indians” in “[a]ll Indian country within the State, 

except the Red Lake Reservation”); 28 U.S.C. § 1360(a) (2012) (providing Minnesota with 

limited jurisdiction “over civil causes of action between Indians or to which Indians are 

parties” which arise in “Indian Country within the State, except the Red Lake 
5

Reservation”); see State v. Jones, 729 N.W.2d 1, 4 (Minn. 2007) (“Minnesota has broad 

criminal and limited civil jurisdiction over all ‘Indian country’ within the state, except for 

the Red Lake Reservation and the Bois Forte Reservation at Nett Lake.”). 

To ascertain whether a statute is within Public Law 280’s express grant of 

jurisdiction, courts must determine whether the statute is “criminal/prohibitory” or 

“civil/regulatory.” California v. Cabazon Band of Mission Indians, 480 U.S. 202, 209-10, 

107 S. Ct. 1083, 1088-89 (1987) (quotation marks omitted); see also State v. Stone, 572 

N.W.2d 725, 729 (Minn. 1997) (applying the Cabazon 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. 

Cabazon, 480 U.S. at 209, 107 S. Ct. at 1088.

The Minnesota Supreme Court has adopted a two-step approach to the Cabazon

prohibitory/regulatory test. Stone, 572 N.W.2d at 730; see State v. Losh, 755 N.W.2d 736, 

744 (Minn. 2008) (applying Stone two-step approach to the Cabazon test). First, 

Minnesota courts determine whether the Cabazon analysis should focus on the broad or 

narrow conduct affected by the statute. Stone, 572 N.W.2d at 729-30. For example, the 

broad conduct affected by a statute prohibiting underage alcohol consumption is alcohol 

consumption, and the narrow conduct is the consumption of alcohol by persons under the 

drinking age. State v. Robinson, 572 N.W.2d 720, 723 (Minn. 1997). “The broad conduct 

will be the focus of the test unless the narrow conduct presents substantially different or 
6

heightened public-policy concerns. If this is the case, the narrow conduct must be analyzed 

apart from the broad conduct.” Stone, 572 N.W.2d at 730. 

After identifying the proper focus, Minnesota courts apply the Cabazon test to 

determine whether the conduct at issue is generally permitted subject to exceptions or 

generally prohibited. Id. In close cases, Minnesota courts consider whether the conduct at 

issue violates the state’s public criminal policy seriously enough to be considered 

“criminal.” Id. In doing so, courts consider four factors, but no single factor is dispositive. 

See id. (describing factors).

Bissonette argues that the Stone test is “too unreliable and subjective to be useful” 

and generally criticizes Minnesota caselaw regarding the State of Minnesota’s jurisdiction 

over offenses arising in Indian country within the state. However, “[t]his court is bound 

by decision[s] of the Minnesota Supreme Court.” Citizens for a Balanced City v. Plymouth 

Congregational Church, 672 N.W.2d 13, 20 (Minn. App. 2003). We therefore follow 

Minnesota precedent when analyzing Bissonette’s jurisdictional challenge.

Bissonette was convicted of child neglect under Minn. Stat. § 609.378, subd. 

1(a)(1). The statute provides that:

A parent, legal guardian, or caretaker who willfully deprives a 

child of necessary food, clothing, shelter, health care, or 

supervision appropriate to the child’s age, when the parent, 

guardian, or caretaker is reasonably able to make the necessary 

provisions and the deprivation harms or is likely to 

substantially harm the child’s physical, mental, or emotional 

health is guilty of neglect of a child and may be sentenced to 

imprisonment for not more than one year or to payment of a 

fine of not more than $3,000, or both. 

Minn. Stat. § 609.378, subd. 1(a)(1).
7

Bissonette contends that because the child-neglect statute concerns “subjective, 

degrees of negligence with regard to watching a child, which are domestic, internal 

relations for any and all tribal members on the reservation,” it is not a criminal/prohibitory 

statute. Bissonette argues that “Public Law 280 did not provide for this kind of jurisdiction, 

which is why the Indian Child Welfare Act was adopted.” Bissonette further argues that 

the statute is “civil/regulatory in nature . . . because of the religious civil rights exception” 

within the statute. 

We begin by identifying the broad and narrow conduct affected by the statute. 

Arguably, the broad conduct affected by the statute could be either all child neglect or 

parenting in general. The narrow conduct is limited to child neglect that “harms or is likely 

to substantially harm [a] child’s physical, mental, or emotional health.” Id. The statute 

prohibits conduct that is more likely than not to substantially harm children, who are 

especially vulnerable; it does not prohibit conduct that merely deviates from a reasonable 

standard of care. See State v. Tice, 686 N.W.2d 351, 355 (Minn. App. 2004) (noting that 

the child-neglect statute only criminalizes “conduct that is more than ordinary civil 

negligence”), review denied (Minn. Nov. 16, 2004). Because the child-neglect statute 

regulates conduct that harms or is likely to substantially harm children, it presents 

heightened public-policy concerns.

Whether we identify the broad conduct as all child neglect or parenting in general, 

the more specific conduct prohibited by the statute presents heightened public-policy 

concerns and justifies focusing on that narrow conduct when applying the Cabazon test. 

See Stone, 572 N.W.2d at 730 (stating that the narrow conduct affected by a statute will be 
8

analyzed apart from the broad conduct when the narrow conduct presents heightened 

public-policy concerns). 

We next consider whether child neglect, as described in the child-neglect statute, is 

generally permitted subject to exceptions or is generally prohibited. See id. (“After 

identifying the focus of the Cabazon test, the second step is to apply it.”). We are guided 

by the public criminal-policy factors set forth in Stone, which are the: (1) extent to which 

the activity directly threatens physical harm to persons or property or invades the rights of 

others; (2) extent to which the law allows for exceptions and exemptions; 

(3) blameworthiness of the actor; and (4) type and severity of the potential penalties for a 

violation of the law. Id. 

The existence of an exception in the child-neglect statute for good-faith use of 

spiritual means or prayer for treatment favors classifying the statute as civil/regulatory. 

See Minn. Stat. § 609.378, subd. 1(a)(1) (“If a parent, guardian, or caretaker responsible 

for the child’s care in good faith selects and depends upon spiritual means or prayer for 

treatment or care of disease or remedial care of the child, this treatment or care is ‘health 

care,’ for purposes of this clause.”). 

However, the three other public criminal-policy factors favor classifying the statute 

as criminal/prohibitory. The child-neglect statute applies to conduct that “harms or is likely 

to substantially harm [a] child’s physical . . . health.” Id. The statute therefore regulates 

activity that directly threatens physical harm to persons, and the harm factor favors 

classifying the child-neglect statute as criminal/prohibitory. Moreover, we have no 

difficulty concluding that a person with caretaking responsibilities for a child who 
9

“willfully deprives” that child of “necessary food, clothing, shelter, health care, or 

supervision appropriate to the child’s age” is blameworthy. Id. Lastly, a person who is 

guilty of child neglect that does not cause actual substantial harm, as is the case here, “may 

be sentenced to imprisonment for not more than one year or to payment of a fine of not 

more than $3,000, or both.” Id. “If the deprivation results in substantial harm to the child’s 

physical, mental, or emotional health, the person may be sentenced to imprisonment for 

not more than five years or to payment of a fine of not more than $10,000, or both.” Id. 

The existence of a criminal penalty alone does not dictate that the child-neglect 

statute is criminal/prohibitory. See Jones, 729 N.W.2d at 9 (“The existence of a criminal 

penalty alone does not dictate that a law is criminal/prohibitory . . . .”); see also Cabazon, 

480 U.S. at 211, 107 S. Ct. at 1089 (“But that an otherwise regulatory law is enforceable 

by criminal as well as civil means does not necessarily convert it into a criminal law within 

the meaning of Pub. L. 280.”). However, the fact that the legislature established grossmisdemeanor and felony penalties for violations of the child-neglect statute supports the 

conclusion that the statute is criminal/prohibitory. See Robinson, 572 N.W.2d at 724

(concluding that the four-factor public criminal-policy analysis supported a determination

that the underage-alcohol-consumption statute is criminal partly because the statute

provides for a “criminal misdemeanor penalty”).

In sum, because three of the four public criminal-policy factors support a conclusion 

that the child-neglect statute applies to conduct that is generally prohibited, we conclude 

that the statute is criminal/prohibitory. Because the child-neglect statute is 

criminal/prohibitory, the state has express jurisdiction under Public Law 280 to enforce the 
10

statute within the boundaries of the Leech Lake Reservation. We therefore affirm without 

addressing Bissonette’s arguments that presume the absence of an express grant of 

jurisdiction. See, e.g., State v. R.M.H., 617 N.W.2d 55, 60-65 (Minn. 2000) (discussing 

the extent to which the state can exercise jurisdiction on a tribal reservation absent express 

federal consent); Stone, 572 N.W.2d at 731-32 (describing “exceptional circumstances” in 

which a state may assert jurisdiction over the on-reservation activities of tribal members 

without an express federal grant of authority (quotation marks omitted)). 

Affirmed.