Appellant Brief - Turtle Talk

avoid any title, color of title or an appearance of a State governmental
interest on the Red Lake Reservation that might be used to impose
liability or suggest State indemnification. [The Department] has
carefully practiced this position for its Highway 1 and 89 activities
within the Red Lake Reservation to protect the State of Minnesota
because Red Lake reservation is a separate jurisdiction within which
the State lacks the access control necessary to limit liability.
A21 9, JA0216. Mr. McKinnon therefore concludes:
The Red Lake Reservation is the only closed reservation I deal with,
and MnDot operations are different on that reservation. MnDot’s
practice has consistently been to approach the Red Lake Reservation
and Tribal Government as a foreign jurisdiction. I cannot identify
documents or MnDot practices concerning the Highway 1 and 89
corridors with the Red Lake Reservation that suggest MnDot has
acquired title, demonstrated any governmental interest, or provided
State liability indemnification that typically accompanies that interest
within its boundaries.
A21-22 11, JA0216-17.
From these statements of Mr. McKinnon, it is apparent that the Minnesota
Department of Transportation does not seek a transfer of jurisdictional authority
from the Band to the State when it seeks a so-called “right-of-way.” Mr.
McKinnon acknowledges that the Department has not been granted the access
control at Red Lake it receives elsewhere in the State on full rights-of-way. This
evidence alone distinguishes the right-of-way in Strate and should have, at the
least, precluded summary judgment pending further discovery.
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