Appellant Brief - Turtle Talk

Moreover, the District Court’s interpretation deprives tribes of both governmental
and property rights by creating a zero-sum game in which a tribe must give up its
governmental rights in toto in order to grant a right-of-way to a state. This
situation creates an untenable situation as a matter of policy. If tribes cannot
negotiate the terms of rights-of-way, including jurisdictional provisions, it creates a
tremendous disincentive for tribes to consent to new or renewed rights-of-way.
Finally, a categorical reading of Strate is inconsistent with the facts that
were introduced (or would have been introduced were Rule 56(f) discovery
allowed) regarding this right-of-way and the Red Lake Reservation. Perhaps most
tellingly, the regional Land Management Engineer for Minnesota’s Department of
Transportation stated in his declaration that the State has never sought
governmental interests, which would include the jurisdiction at issue here, on the
Red Lake Reservation, in contrast to its practice elsewhere, because of the unique
nature and history of the Reservation. Accordingly, the control exercised by the
State on the highway at issue is extremely limited, to the point where the State
requests permission before engaging in even routine maintenance of the highway.
Congress, the State of Minnesota, and several courts similarly have noted that the
main body of the Red Lake Reservation was never ceded and has never been
allotted. These, and other factors, are more than sufficient to distinguish the right-
of-way at issue in Strate. The District Court’s categorical interpretation of that
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