Appellant Brief - Turtle Talk

1. While Strate Does Contain Facially Categorical Language,
Its Reasoning Supports a Fact-Based Analysis in
Appropriate Cases.
The District Court correctly notes that the holding in Strate appears to be
stated categorically: “[T]ribal courts may not entertain claims against nonmembers
arising out of accidents on state highways, absent a statute or treaty authorizing the
tribe to govern the conduct of nonmembers on the highway in question.” 520 U.S.
at 442. This does not mean, however, that Strate should be blindly applied to all
cases involving rights-of-way over tribal trust land because the reasoning in the
Court’s opinion cannot support such an interpretation.
The Strate Court engaged in a detailed analysis of: (1) the granting
instrument itself, specifically noting that the grant contained only one limited
reservation to the Indian landowners—a right to construct and use crossings of the
right-of-way; (2) that “the right-of-way [wa]s open to the public;” (3) that traffic
on the right-of-way was “subject to the State’s control;” and (4) that the tribes
“consented to, and received payment for, the State’s use of the . . . highway.” Id. at
455-56. Such an analysis is entirely superfluous if the mere grant of any right-of-
way is sufficient to divest a tribe of adjudicatory jurisdiction. Moreover, after that
analysis the Court stated: “We therefore align the right-of-way, for the purpose at
hand, with land alienated to non-Indians.” Id. at 456 (emphasis added). Thus, a
key piece of the Court’s logical analysis–that the Montana rule regarding alienated
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