Appellant Brief - Turtle Talk

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.
As explained in Section I.E above, the course of performance between the
State and the Band shows that the purported right-of-way over Highways 89 and 1
is not the same as the right-of-way in Strate. If allowed to conduct discovery, the
Tribal Court expects to develop further evidence that neither the Band nor the State
has interpreted any right-of-way on Highways 89 and 1 as conveying governmental
authority from the Band to the State. The Tribal Court gathered and submitted to
the District Court some compelling evidence–most particularly the McKinnon
Declaration–regarding how the State’s maintenance, general treatment, and lack of
police patrol on the right-of-way show that the State does not treat the right-of-way
as transferring jurisdiction from the Band to the State. This evidence, however, is
not a full record that could properly allow this Court, or the Supreme Court, to
review this matter fully.
Additional time should have been allowed, and should now be allowed, to
develop evidence regarding the right-of-way, including the course of performance.
Such evidence would be relevant both as extrinsic evidence of what the parties to a
right-of-way intended, if a right-of-way was lawfully granted, and as evidence of
the character of the highway regardless of the existence of a right-of-way.
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