Appellant Brief - Turtle Talk

nature of such a “right-of-way” would be defined by the instrument creating it.
Restatement (Third) of Property: Servitudes § 4.1; see Scherger v. N. Natural Gas
Co., 575 N.W.2d 578, 580 (Minn. 1998) (“The extent of an easement depends
entirely upon the construction of the terms of the agreement granting the
easement.”). In creating a right-of-way, a landowner has the right to convey as
much or as little as he desires. The holder of the right-of-way has no right to
demand more than was conveyed. See, e.g., Hwy. 7 Embers, Inc. v. NW Nat’l
Bank, 256 N.W.2d 271 (Minn. 1977) (limiting parties to express terms of
easement).
But under the District Court’s interpretation, even an absolutely clear and
express reservation of tribal jurisdiction apparently would be declared a nullity. A
categorical reading of Strate deprives tribes of this most basic right—the right of a
landowner to convey certain aspects of his bundle of rights while retaining others.
Treating sovereign Indian tribes as less than private property owners is both unjust
and wholly inconsistent with tribes’ governmental status and Congress’ policy of
promoting tribal government.
D. Categorical Application of the Supreme Court’s Decision in Strate
Would Impair Productive Government-to-Government
Negotiations Between Tribes and States.
Under the District Court’s reading of Strate, an Indian tribe would have to
be willing to give up its sovereign regulatory and adjudicatory authority to regulate
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