Appellant Brief - Turtle Talk

More documents

Recommendations

Info

presence on the Reservation and often do not respond even when requested to deal with a non-Indian criminal matter. In concluding that the right-of-way in Strate was equivalent to non-Indian fee land, the Strate court expressly relied on the fact that “traffic on [the right-of- way] is subject to the State’s control.” 520 U.S. at 455-56. It then explained that tribal police would still have authority “to detain and turn over to state officers nonmembers stopped on the highway for conduct violating state law.” Id. at 455- 56, n. 11 (emphasis added). The Court did not conclude that exercise of tribal police authority is irrelevant to the jurisdictional analysis but simply explained that even when a right-of-way is equivalent to non-Indian fee land, tribal police may patrol that right-of-way on the state’s behalf. Here, the Tribal Court expects to be able to show that the tribal police patrol the right-of-way not on behalf of the state, but on behalf of the Tribe and to the exclusion of the State. Here, unlike in Strate, the Band consented at most to only a limited grant of right-of-way, the Band retained and has maintained its regulatory authority, and both the Band and the State of Minnesota have long respected this understanding. A19-21 5, 9-11, JA0214-17. Under the facts of this case, the right-of-way here should be considered tribal land, not “alienated” non-Indian land within the meaning of Strate. In accordance with this conclusion, this Court should conclude that the Tribal Court has jurisdiction over the Nords regarding their conduct on 31
tribal land. At the very least, there are factual issues concerning the use and control of the right-of-way which should have precluded determination of the jurisdictional issue on summary judgment here, at least without further discovery. 2. Stipulation (e) to the State’s Application Reserves Governmental Authority to the Band, and Its Tribal Court. The fifth of fives stipulations required of the State with its application for a right-of-way 10 was that it would “not interfere with the use of the lands by or under the authority of the landowners for any purpose not inconsistent with the primary purpose for which the right-of-way was granted.” 25 C.F.R. § 256.7 (1951), JA0069. By its plain language, this provision means that the Band retained its governmental authority over any right-of-way that was granted. JA0059. The stated purpose of the “Application for Public Highway” was: Trunk Highway No. 170, renumbered 1, is part of the trunk highway system as established by the Legislature of the State of Minnesota, pursuant to the provisions of the constitution and this [highway] improvement is necessary in carrying out the provisions of said constitution and law in regard to the final location, construction, and maintenance of trunk highways. The purposes are limited to “location, construction, and maintenance” of the highway. Id. None of those purposes requires governmental control by the State 10 The required stipulations, and the regulations requiring them, are discussed fully in Section III. 32
Page 1 and 2: Chad Dennis Nord, Dennis Nord, d/b/
Page 3 and 4: CORPORATE DISCLOSURE STATEMENT Neit
Page 5 and 6: Fact-Specific Application of the St
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: Declaration makes apparent, the Sta
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.

Appellant Brief - Turtle Talk

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?