Appellant Brief - Turtle Talk

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TABLE OF CONTENTS SUMMARY OF THE CASE..........................................2 CORPORATE DISCLOSURE STATEMENT ............................ i TABLE OF AUTHORITIES......................................... vi JURISDICTIONAL STATEMENT ....................................1 STATEMENT OF THE ISSUES ......................................1 STATEMENT OF THE CASE ........................................3 STATEMENT OF THE FACTS .......................................6 SUMMARY OF ARGUMENT........................................7 ARGUMENT.....................................................10 I. THE DISTRICT COURT INCORRECTLY CONCLUDED THAT UNDER STRATE, ANY RIGHT-OF-WAY NECESSARILY DIVESTS A TRIBE OF ITS INHERENT AUTHORITY TO REGULATE NONMEMBER CONDUCT ON TRIBAL TRUST LANDS ....................................................10 A. Standard of Review......................................12 B. The Reasoning of the Strate Court Cannot Support a Categorical Interpretation of Its Holding .....................13 1. While Strate Does Contain Facially Categorical Language, Its Reasoning Supports a Fact-Based Analysis in Appropriate Cases................................14 2. That the Supreme Court Foresaw Categorical Application of the Strate Rule In Some Instances Does Not Foreclose ii
Fact-Specific Application of the Strate Rule in Appropriate Cases..................................17 3. Other Courts Have Engaged in Fact-Specific Analysis Under Strate ......................................18 C. Categorical Application of the Supreme Court’s Decision in Strate Would Be Unjust ..................................20 D. Categorical Application of the Supreme Court’s Decision in Strate Would Impair Productive Government-to-Government Negotiations Between Tribes and States......................22 E. The Nature of Any Right-of-Way Here Supports Tribal Court Jurisdiction in this Case ..................................23 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 ..................................24 2. Stipulation (e) to the State’s Application Reserves Governmental Authority to the Band, and Its Tribal Court . . 32 3. The History and Course of Performance Make It Clear that the State Did Not Receive Any “Right-of-Way” Sufficient to Divest the Band of Jurisdiction over the Accident at Issue...................................34 II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE NORDS BECAUSE THE TRIBAL COURT WAS ENTITLED TO ADDITIONAL DISCOVERY UNDER FED. R. CIV. R. 56(F) AND HAS NOT YET HAD THE OPPORTUNITY TO CONDUCT ADEQUATE DISCOVERY .......................35 A. Additional Discovery Would Have Led to Evidence Regarding the Course of Performance of the Parties with Respect to the Highway, and That There Was No Intent to Transfer Jurisdiction over Any Right-of-Way ........................42 iii
Page 1 and 2: Chad Dennis Nord, Dennis Nord, d/b/
Page 3: CORPORATE DISCLOSURE STATEMENT Neit
Page 7 and 8: 1. It is absurd to expect the Tribe
Page 9 and 10: Hwy. 7 Embers, Inc. v. NW Nat’l B
Page 11 and 12: Minn. Stat. § 97A.505, subd. 3b ..
Page 13 and 14: Strate v. A-1 Contractors, 520 U.S.
Page 15 and 16: that the Nords failed to establish
Page 17 and 18: Nords against further proceedings i
Page 19 and 20: Moreover, the District Court’s in
Page 21 and 22: At a minimum and contrary to the Di
Page 23 and 24: In Strate, the Supreme Court applie
Page 25 and 26: 1. While Strate Does Contain Facial
Page 27 and 28: limited right-of-way, like that all
Page 29 and 30: “such as this one.” Recall, how
Page 31 and 32: Here, the Tribal Court has requeste
Page 33 and 34: nature of such a “right-of-way”
Page 35 and 36: allowed to develop in discovery wou
Page 37 and 38: Perhaps more importantly, the State
Page 39 and 40: General Treatment by the State The
Page 41 and 42: Declaration makes apparent, the Sta
Page 43 and 44: tribal land. At the very least, the
Page 45 and 46: Accordingly, under the terms of any
Page 47 and 48: District Court incorrectly conclude
Page 49 and 50: Continue Hr’g, and for Contingent
Page 51 and 52: l. that the State and County law en
Page 53 and 54: A. Additional Discovery Would Have
Page 55 and 56:
an errand to pick up hay for [his]
Page 57 and 58:
In summary, there are a number of i
Page 59 and 60:
1. The State’s Application for th
Page 61 and 62:
of these items renders the stipulat
Page 63 and 64:
Section 256.7 requires that the sti
Page 65 and 66:
3. The Right-of-Way is Void Because
Page 67 and 68:
their authority; and one who deals
Page 69 and 70:
2. Any State Reliance or Past Compe
Page 71 and 72:
Court agrees with the District Cour
Page 73 and 74:
ADDENDUM Nord v. Kelly, et al., No.
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Appellant Brief - Turtle Talk

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