Appellant Brief - Turtle Talk

Accordingly, under the terms of any right-of-way that may have been
granted, the Band retained under stipulation (e) the governmental authority to
exercise civil jurisdiction over the land at issue in this case.
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.
Department of Transportation Land Management Engineer McKinnon
states: “ ‘Right-of-Way’, or similar terminology used in reference to State
Highway corridors within the Red Lake Reservation, are a function of document
form, not substance.” A20 6, JA0215. Those “rights-of-way,” he states, are
simply “temporary construction easements and maintenance corridor boundaries”
but have not and do not contain a “Tribal grant of title or governmental authority or
interest to the State.” A20-22, JA0215-17
That Mr. McKinnon states that the “rights-of-way,” including the one at
issue here, are “rights-of-way” in name only is enough to distinguish the right-of-
way in Strate. Mr. McKinnon’s testimony demonstrates that the State does not
even seek such an interest on the Red Lake Reservation, and his review of past
“rights-of-way” has led him to the conclusion that the State has never sought
governmental authority over Red Lake lands. Id. at 8, 11.
There is another reason to distinguish this road from that at issue in Strate.
The road in Strate was a state highway “to facilitate public access to Lake
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