Appellant Brief - Turtle Talk

conduct within its territorial jurisdiction in order to convey a right-of-way to a state
government requesting access. This creates a major disincentive for tribes to
consent to new or renewed rights-of-way. If a categorical reading of Strate were to
prevail, states therefore would likely have a difficult time obtaining rights-of-way
through reservations. 7
E. The Nature of Any Right-of-Way Here Supports Tribal Court
Jurisdiction in this Case.
The preceding sections have addressed why a categorical interpretation of
Strate is not appropriate or wise in general. This section addresses the specific
facts regarding the Red Lake Reservation and the purported right-of-way at issue,
and demonstrates the profound and dispositive differences between that right-of-
way and the one in Strate. The Supreme Court applied the Montana Rule to the
right-of-way at issue in Strate because the tribe’s relinquishment of control over
the right-of-way rendered it the “equivalent, for nonmember governance purposes,
to alienated, non-Indian land.” 520 U.S. at 454. Unlike in Strate, a close analysis
of the same factors illustrates that any right-of-way is not the equivalent of
alienated non-Indian land. Additional facts that the Tribal Court should have been
7 The Band and the State face such a situation now. The State concedes that it
is lacking any valid grant for four miles of the 89/1 corridor. A19 3. The Band is
reluctant to consent to a right-of-way for that section because it is unclear how it can
effectively retain its governmental authority in light of the District Court’s opinion.
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