Appellant Brief - Turtle Talk

Sakakawea, a federal water resource project under the control of the Army Corps
of Engineers.” 520 U.S. at 455. The Supreme Court carefully noted that the
purpose and nature of the land, as “open to the public,” rendered the highway
equivalent to “alienated, non-Indian land.” Id. at 454-55. The road at issue here is
a throughway in a remote part of the State, but it is also literally the main street for
the Red Lake Reservation, as discovery would show. When the underlying
accident occurred, the plaintiff, a member of the Band, was traveling to the home
of a friend whose driveway is on the highway, not simply passing through for
purpose of accessing a non-Indian destination within or without the Reservation.
This road and the factual circumstances of this case, therefore, are much different
than those at issue in Strate.
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.
Thus, not all rights-of-way are created equal, and the holding in Strate
should not be applied categorically to all rights-of-way over tribal trust lands
generally or to the one here specifically. The correct approach must allow for a
fact-based analysis in appropriate cases to examine factors similar to those relied
on by the Strate Court when it concluded that the right-of-way in that case was the
equivalent of alienated, non-Indian land for jurisdictional purposes. Because the
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