Appellant Brief - Turtle Talk

Id. (Emphasis added.) This categorical interpretation of Strate is inconsistent with
the wide variety of rights-of-way that exist in Indian Country (including the one at
issue here), with the nature of the underlying property and governmental rights of
tribes, and with the manner in which other courts have applied Strate. Moreover, a
categorical interpretation of Strate creates a zero-sum game in which it likely will
be very difficult for states and tribes to agree on the terms of future rights-of-way
that fulfill the needs of both governments. Accordingly, the judgment of the
District Court must be reversed and, if necessary, discovery allowed to develop the
factual basis necessary to apply Strate in a sound manner.
It is a basic tenet of Indian law that Indian nations retain all aspects of their
inherent sovereign authority except those that have been expressly ceded or
divested, and those that are inconsistent with tribes’ status in the federal system. In
accordance with this rule, the Supreme Court has recognized that Tribes retain
sovereign authority to regulate and adjudicate nonmember conduct on tribal trust
lands within their reservations. See Montana v. United States, 450 U.S. 544, 557
(1981). In general, however, Tribes lack authority to regulate conduct of
nonmembers on non-Indian land within reservation boundaries. Id. at 565. This
proposition and its exceptions, first stated by the Supreme Court in Montana, has
come to be known as the “Montana Rule.” See Strate, 520 U.S. at 446.
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