Appellant Brief - Turtle Talk

case thus deprived the Band of the very analysis the Strate Court used to reach its
result, and should be reversed.
If this Court agrees that Strate cannot foreclose an analysis of the nature of a
particular right-of-way, then it follows that the District Court also erred in not
allowing the Tribal Court to conduct discovery under Rule 56(f). Because of the
complicated procedural histories of the interlocking tribal and federal cases here,
various stays, and the sequence of filings, the Tribal Court never had an adequate
opportunity to conduct discovery necessary to the resolution of this matter under a
proper interpretation of Strate. Thus, while intimately related to its categorical
reading of Strate, the District Court’s denial of Rule 56(f) discovery is an
independent abuse of discretion that must be reversed.
Finally, assuming the District Court’s interpretation of Strate were correct,
the Tribal Court has no alternative but to raise the fact that the alleged right-of-way
is void ab initio as a matter of law. The relevant regulations regarding rights-of-
way across Indian lands require that a state “expressly” stipulate to five conditions.
The State’s Commissioner of Highways expressly agreed to only three of those
five conditions. Those omissions are consistent with Mr. McKinnon’s statements
regarding the State’s concerns about assuming liability and governmental interests
on the Red Lake Reservation, but they are not consistent with the regulations. The
right-of-way was therefore void ab initio.
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