Appellant Brief - Turtle Talk

Indian lands applied to the right-of-way–was dependent on the specifics of that
right-of-way and the facts of that case.
It is well established that cases are not authority for propositions not
considered, see United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38
(1952), and the propositions at issue here were not considered in Strate.
"Questions which merely lurk in the record, neither brought to the attention of the
court nor ruled upon, are not to be considered as having been so decided as to
constitute precedents." Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170
(2004). Even where a prior case addresses an issue in dictum, or an otherwise
indirect manner, a subsequent court should not consider it binding precedent. See
United States v. Norris, ___ F.3d ___, 2007 WL 1174862, at *7 (8th Cir. Apr. 23,
2007) (Colloton, J., concurring) ("I would not read the opinion implicitly to make a
definitive statement on an issue that was not raised."); see Brecht v. Abrahamson,
507 U.S. 619, 630-31 (1993) (holding that stare decisis does not apply unless the
issue was "squarely addressed" in prior decision).
In Strate, the Court addressed whether a tribe retained jurisdiction to
adjudicate claims associated with a particular right-of-way over which that
particular tribe retained very little authority. It did not consider whether a more
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