Appellant Brief - Turtle Talk
Appellant Brief - Turtle Talk 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 15
limited right-of-way, like that allegedly at issue here, 5 would have the same effect. It certainly did not contemplate the possibility that a tribe could (and perhaps has) in the plainest language reserved civil adjudicatory jurisdiction in a grant of right- of-way. If a right is reserved expressly or implicitly, that reservation cannot be ignored, as a matter of law, justice, or the reasoning of Strate. And yet, the District Court concluded that any surrender of control by a tribe, no matter how de minimis, leads inexorably under Strate to a loss of adjudicatory jurisdiction. All rights-of-way are not created equal, and a ruling concerning one right-of- way is not determinative with regard to a different right-of-way. A right-of-way is an interest in real property and a contractual right, see Kleinheider v. Phillips Pipe Line Co., 528 F.2d 837, 840 (8th Cir. 1975), the precise scope of which is determined by the granting instrument. Restatement (Third) of Property: Servitudes § 4.1 (2000) (“A servitude should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument.”). Some are extremely broad; and others are quite narrow. Because Strate concerned a broad right-of-way very different from the narrow right-of-way at issue here, Strate does not, and should not be read to, dictate the outcome of this case. 5 For purposes of Sections I and II of this brief, appellants’ assume arguendo that a valid right-of-way exists for the portion of the highway where the accident occurred. Section III presents the appellants’ argument that, if Strate is read as categorical, the right-of-way is void ab initio. 16
- Page 1 and 2: Chad Dennis Nord, Dennis Nord, d/b/
- Page 3 and 4: CORPORATE DISCLOSURE STATEMENT Neit
- Page 5 and 6: Fact-Specific Application of the St
- Page 7 and 8: 1. It is absurd to expect the Tribe
- Page 9 and 10: Hwy. 7 Embers, Inc. v. NW Nat’l B
- Page 11 and 12: Minn. Stat. § 97A.505, subd. 3b ..
- Page 13 and 14: Strate v. A-1 Contractors, 520 U.S.
- Page 15 and 16: that the Nords failed to establish
- Page 17 and 18: Nords against further proceedings i
- Page 19 and 20: Moreover, the District Court’s in
- Page 21 and 22: At a minimum and contrary to the Di
- Page 23 and 24: In Strate, the Supreme Court applie
- Page 25: 1. While Strate Does Contain Facial
- Page 29 and 30: “such as this one.” Recall, how
- Page 31 and 32: Here, the Tribal Court has requeste
- Page 33 and 34: nature of such a “right-of-way”
- Page 35 and 36: allowed to develop in discovery wou
- Page 37 and 38: Perhaps more importantly, the State
- Page 39 and 40: General Treatment by the State The
- Page 41 and 42: Declaration makes apparent, the Sta
- Page 43 and 44: tribal land. At the very least, the
- Page 45 and 46: Accordingly, under the terms of any
- Page 47 and 48: District Court incorrectly conclude
- Page 49 and 50: Continue Hr’g, and for Contingent
- Page 51 and 52: l. that the State and County law en
- Page 53 and 54: A. Additional Discovery Would Have
- Page 55 and 56: an errand to pick up hay for [his]
- Page 57 and 58: In summary, there are a number of i
- Page 59 and 60: 1. The State’s Application for th
- Page 61 and 62: of these items renders the stipulat
- Page 63 and 64: Section 256.7 requires that the sti
- Page 65 and 66: 3. The Right-of-Way is Void Because
- Page 67 and 68: their authority; and one who deals
- Page 69 and 70: 2. Any State Reliance or Past Compe
- Page 71 and 72: Court agrees with the District Cour
- Page 73 and 74: ADDENDUM Nord v. Kelly, et al., No.
limited right-of-way, like that allegedly at issue here, 5 would have the same effect.<br />
It certainly did not contemplate the possibility that a tribe could (and perhaps has)<br />
in the plainest language reserved civil adjudicatory jurisdiction in a grant of right-<br />
of-way. If a right is reserved expressly or implicitly, that reservation cannot be<br />
ignored, as a matter of law, justice, or the reasoning of Strate. And yet, the District<br />
Court concluded that any surrender of control by a tribe, no matter how de<br />
minimis, leads inexorably under Strate to a loss of adjudicatory jurisdiction.<br />
All rights-of-way are not created equal, and a ruling concerning one right-of-<br />
way is not determinative with regard to a different right-of-way. A right-of-way is<br />
an interest in real property and a contractual right, see Kleinheider v. Phillips Pipe<br />
Line Co., 528 F.2d 837, 840 (8th Cir. 1975), the precise scope of which is<br />
determined by the granting instrument. Restatement (Third) of Property:<br />
Servitudes § 4.1 (2000) (“A servitude should be interpreted to give effect to the<br />
intention of the parties ascertained from the language used in the instrument.”).<br />
Some are extremely broad; and others are quite narrow. Because Strate concerned<br />
a broad right-of-way very different from the narrow right-of-way at issue here,<br />
Strate does not, and should not be read to, dictate the outcome of this case.<br />
5 For purposes of Sections I and II of this brief, appellants’ assume arguendo<br />
that a valid right-of-way exists for the portion of the highway where the accident<br />
occurred. Section III presents the appellants’ argument that, if Strate is read as<br />
categorical, the right-of-way is void ab initio.<br />
16
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