Appellant Brief - Turtle Talk

allowed to develop in discovery would underscore that conclusion–the right-of-
way here retains its character as tribal trust land, and the Tribal Court retains
jurisdiction.
1. The Actions and Testimony of the State and the Band
Indicate Clearly that Neither Believed that General Civil
Governmental Authority was Transferred to the State by
any Right-of-Way.
A right-of-way is a contract. See Kleinheider, 528 F.2d at 840. The Tribal
Court addresses below reasons that the granting documents underlying any right-
of-way here are at a minimum ambiguous, if not fatally flawed. If the Court is
uncertain whether the plain language of those documents was sufficient to reserve
civil jurisdiction to the Band, then it is necessary to look at the course of
performance of the parties to see what they understood was, and was not, conveyed
in any right-of-way. See United States v. Basin Elec. Power Co-op, 248 F.3d 781,
809 (8th Cir. 2001).
Evidence currently available by declaration and exhibit shows clearly that
neither the Band nor the State has interpreted any right-of-way on Highways 89
and 1 as conveying governmental authority from the Band to the State. A18-22;
JA0213-19.
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