Appellant Brief - Turtle Talk

A categorical reading of Strate is also unjust because it is contrary to general
federal Indian policy giving tribes the right to self-government and the right to
make choices regarding exercises of governmental authority. For instance, tribes
may enter into cross-deputization agreements with the state whereby state officers
may regulate conduct or issue citations pursuant to the tribe’s governmental
authority and tribal officers may do the same under the authority of the state. See,
e.g., State v. Manypenny, 662 N.W.2d 183 (Minn. Ct. App. 2003); State v. Waters,
971 P.2d 538 (Wash. Ct. App. 1999). They also have the authority to refuse to
enter such an agreements. See Cohen’s Handbook of Federal Indian Law § 6.05,
p. 590 (Nell Jessup Newton et al., eds.) (2005 ed.) (“Tribes or states may not desire
the [cross-deputization] agreements for a variety of reasons”).
Rights-of-way can involve conveyance of these types of governmental
authority but, as this case illustrates, need not do so. To conclude, as the District
Court did here, that any right-of-way granted by a tribe to a state necessarily
deprives the tribe of its regulatory and adjudicatory jurisdiction over that portion of
its lands covered by the right-of-way is to deprive the tribe of its sovereign
governmental authority.
The District Court’s categorical reading of Strate also relegates tribes to a
status below that of an individual property owner. An individual property owner
has the power to convey to another a limited right to cross over his land. The
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