Appellant Brief - Turtle Talk

“such as this one.” Recall, however, that the Strate Court only concluded that the
right-of-way in that case was the equivalent of alienated Indian land after
examining the facts specific to that case. Footnote 14 does not foreclose factual
analysis.
The most sensible reading of footnote 14 then is that it allows a nonmember
to proceed directly to federal court for a preliminary review of any particular right-
of-way and the surrounding circumstances. If it is a clearcut case, as in Strate,
exhaustion would not be required. If it is not clear that a right-of-way is “land
covered by Montana’s main rule,” the federal court should stay or dismiss an
action until the tribal court has had a chance to determine its own jurisdiction,
including development of a thorough record. 6
3. Other Courts Have Engaged in Fact-Specific Analysis
Under Strate.
Consistent with the Tribal Court’s interpretation of Strate, including
footnote 14, other courts have looked at the nature of a right-of-way before making
rulings under Strate. That exercise would be wholly unnecessary were the District
Court correct that any surrender of control by a tribe also surrenders jurisdiction.
6 The proper procedure in tribal exhaustion cases, including whether the federal
court acts in a trial or appellate capacity, is far from clear in the cases. Much of the
briefing in the District Court addressed the ramifications of that lack of clarity.
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