Appellant Brief - Turtle Talk

The Band’s position was made clear early on. On July 3, 1955, shortly after
the formation of any right-of-way here, the Red Lake Tribal Council discussed a
rumor. Its minutes state:
Peter Graves said that there are rumors that the State Highway
Officers are to patrol the State Highways on the reservation. He said
that the Red Lake Band has not relinquished the land, and we are not
under State law.
Minutes of July 3, 1955, JA0219. Peter Graves was the Secretary of the Band at
the time and signed the Tribal Council resolution consenting to a right-of-way.
Tribal Council Resolution No. 2 (Apr. 21, 1955), JA0026. It is worth noting that
there is no mention in that resolution of any assumption of jurisdiction by the
State. 8 It is also clear from statute and the regulations that the BIA superintendent
could not grant something that the Council had not consented to give. 25 U.S.C.
§ 324; 25 C.F.R. § 256.3 (1951), JA0067. To this day, the Band acts consistently
with the interpretation that any grants of right-of-way over Highways 89 and 1 do
not convey governmental authority or jurisdiction to the State.
8 The Tribal Council included a number of conditions in the Resolution that
were not incorporated into the application or the purported approval by the
superintendent. That fact alone is an infirmity in the approval process, since the
conditions were not incorporated into a federal document binding on the State, as they
should have been were the State assuming control over the roadbed. Of course,
another interpretation–one that is far more consistent with the course of
performance–is that the conditions were not incorporated elsewhere because the State
continued, and still continues, to recognize the Council’s authority over lands
underlying the “rights-of-way” on the Reservation.
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