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The Honorable Patrick J. Schiltz, United States District Judge for the District

of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-1564

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Chad Dennis Nord; Dennis Nord,

d/b/a/ Nord Trucking,

Appellees,

v.

Donald Michael Kelly; Red Lake

Nation Tribal Court,

Appellants.

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Appeal from the United States

District Court for the

District of Minnesota.

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Submitted: November 15, 2007

Filed: April 4, 2008

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Before MURPHY, HANSEN, and GRUENDER, Circuit Judges. 

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HANSEN, Circuit Judge.

Donald Michael Kelly and the Red Lake Nation Tribal Court ("Tribal Court")

appeal the district court's1

 grant of summary judgment to Chad Dennis Nord and his

father Dennis Nord, doing business as Nord Trucking (collectively, "the Nords") in
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this declaratory judgment action. The district court determined that the Tribal Court

lacked jurisdiction over a suit against a non-Indian, nonmember of the Tribe arising

from an automobile accident on a state highway within the reservation. We affirm.

I. 

In this summary judgment context, we view the facts and their permissible

inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); County of Mille Lacs v.

Benjamin, 361 F.3d 460, 463 (8th Cir.), cert. denied, 543 U.S. 956 (2004). On

December 16, 2000, Chad Nord, a non-Indian, was driving a semi-truck owned by

Nord Trucking when he collided with an automobile driven by Donald Kelly, a

member of the Red Lake Band of Chippewa Indians ("Red Lake Band"). The accident

occurred on a stretch of Minnesota Highways 1 and 89, located within the boundaries

of the Red Lake Indian Reservation in northern Minnesota. Tribal law enforcement

authorities and a tribal ambulance service responded to the accident.

Minnesota Department of Transportation records indicate that, in 1955, the

State of Minnesota ("the State") submitted an application and stipulation to the

Department of the Interior's Bureau of Indian Affairs for federal approval of a rightof-way to construct a state public highway on the stretch of road at issue. Certified

records of the Bureau of Indian Affairs-Land Titles & Records Office include an

approved map of the right-of-way, a copy of the State's application and stipulation,

and reference to a tribal resolution waiving payment for the land. The Red Lake Band

General Council's unanimously approved resolution, dated April 1955, shows that the

Red Lake Band considered the State's application for a right-of-way, consented to

waive damages to tribal land in light of the benefit conferred by the road

improvement, and required the State to pay damages to individual tribal members in

exchange for the right-of-way. 
2

Kelly and the Tribal Court are both appellants and filed a joint appeal brief, but

for the sake of simplicity and because tribal court jurisdiction is the only issue on

appeal, we will refer only to the Tribal Court in our discussion. 

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In September 2001, Kelly sued the Nords in Tribal Court, seeking damages for

personal injuries sustained in the accident. The non-Indian Nords filed a motion to

dismiss for lack of jurisdiction, citing Strate v. A-1 Contractors, 520 U.S. 438, 442

(1997) (holding "tribal courts may not entertain claims against nonmembers arising

out of accidents on state highways, absent a statute or treaty authorizing the tribe to

govern the conduct of nonmembers on the highway in question"). The Tribal Court

did not rule on the motion to dismiss until September 28, 2005, when it ultimately

determined that it had jurisdiction over the dispute. In the meantime, the Nords had

filed an action in federal court for a declaratory judgment that the Tribal Court lacked

jurisdiction. The parties stipulated to a stay of the federal court action pending

resolution of the Tribal Court appeal. The stay was lifted in early February 2006 after

the Red Lake Court of Appeals affirmed the Tribal Court's determination that it had

jurisdiction.

The Tribal Court then moved the federal district court to dismiss the declaratory

judgment action and to stay discovery pending resolution of the motion to dismiss.

The Nords filed a motion for summary judgment, arguing that the Tribal Court lacked

jurisdiction over Kelly's suit against them. The Tribal Court moved alternatively for

a continuance of the summary judgment hearing in order to permit discovery pursuant

to Rule 56(f) of the Federal Rules of Civil Procedure. The district court granted

summary judgment to the Nords and denied the Tribal Court's motions. The Tribal

Court and Kelly2

 appeal the adverse grant of summary judgment. 

II. 

We review de novo the district court's grant of summary judgment, applying the

same standards as the district court. Plains Commerce Bank v. Long Family Land &
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Cattle Co., 491 F.3d 878, 884 (8th Cir. 2007), cert. granted, 128 S. Ct. 829 (Jan. 4,

2008) (No. 07-411). Summary judgment is appropriate if there is no genuine issue as

to any material fact and the moving party is entitled to judgment as a matter of law.

Id.; Fed. R. Civ. P. 56(c). We review for an abuse of discretion the district court's

refusal to allow further discovery prior to ruling on a motion for summary judgment.

Conner v. Reckitt & Colman, Inc., 84 F.3d 1100, 1103 (8th Cir. 1996). The district

court does not abuse its discretion in denying a continuance and further discovery

where the nonmoving party is not deprived of a fair chance to respond to the summary

judgment motion. See Iverson v. Johnson Gas Appliance Co., 172 F.3d 524, 530 (8th

Cir. 1999). Determining the extent to which an Indian tribe has the power to compel

a non-Indian to submit to the civil jurisdiction of a tribal court is a question of federal

law, Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 852

(1985), and we review the issue de novo, Plains Commerce Bank, 491 F.3d at 884. 

This case is controlled by the Supreme Court's decision in Strate, holding that

"tribal courts may not entertain claims against nonmembers arising out of accidents

on state highways, absent a statute or treaty authorizing the tribe to govern the conduct

of nonmembers on the highway in question." 520 U.S. at 442. The Court's analysis

in Strate began with the general and well-established proposition that "absent express

authorization by federal statute or treaty, tribal jurisdiction over the conduct of

nonmembers exists only in limited circumstances." Id. at 445; see also id. at 453 ("As

to non-members . . . a tribe's adjudicative jurisdiction does not exceed its legislative

jurisdiction," absent congressional direction otherwise.). The Court explained that,

while "tribes retain considerable control over nonmember conduct on tribal land," id.

at 454, generally, in the absence of a statute or treaty authorizing otherwise, and

subject to two limited exceptions, "Indian tribes lack civil authority over the conduct

of nonmembers on non-Indian land within a reservation," id. at 446. This general rule

was set forth in Montana v. United States, 450 U.S. 544 (1981), which the Court in

Strate referred to as "the pathmarking case concerning tribal civil authority over

nonmembers." 520 U.S. at 445. 
3

The dispute in Strate arose out of an accident between two non-Indians,

whereas here, one party was a member. We find this to be a distinction without a

difference, however, because in either case, the question is whether the tribe has

jurisdiction over the nonmember. 

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The Court in Strate determined that the state highway at issue was the

equivalent of non-Indian fee land for purposes of determining the tribe's jurisdiction

over nonmembers, subject to the general rule of Montana, and found that neither of

Montana's exceptions applied. The Montana exceptions provide that "Indian tribes

retain inherent sovereign powers to exercise some forms of civil jurisdiction over nonIndians on their reservations, even on non-Indian fee lands" in the following

circumstances: (1) to "regulate, through taxation, licensing, or other means, the

activities of nonmembers who enter consensual relationships with the tribe, or its

members, through commercial dealing[s]" and (2) "to exercise civil authority over the

conduct of non-Indians on fee lands within its reservation when that conduct threatens

or has some direct effect on the political integrity, the economic security, or the health

or welfare of the tribe." 450 U.S. at 565-66. "Both Montana and Strate rejected tribal

authority to regulate nonmembers' activities on land over which the tribe could not

assert a landowner's right to occupy and exclude." Nevada v. Hicks, 533 U.S. 353,

359 (2001) (internal marks omitted). But see id. at 360 (cautioning that "[t]he

ownership status of land . . . is only one factor to consider in determining whether

regulation of the activities of nonmembers is 'necessary to protect tribal selfgovernment or to control internal relations,' though "[i]t may sometimes be a

dispositive factor" (quoting Montana, 450 U.S. at 564)). These Supreme Court

precedents indicate that, in applying the Montana exceptions, the key concept is that

tribal authority to regulate nonmember activities exists where it is "'necessary to

protect tribal self-government or to control internal relations.'" Id. at 360 (quoting

Montana, 450 U.S. at 564); see also Strate, 520 U.S. at 459. 

The district court determined that the facts of the present case are on all fours

with Strate, and we agree. In Strate, as here, the dispute involved claims against a

non-Indian3

 arising out of an automobile accident that occurred on a state highway
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within an Indian reservation on land in North Dakota held in trust for the Three

Affiliated Tribes ("the Tribes"). The Court considered the federally granted right-ofway for the highway, finding that tribal officials had consented to the right-of-way,

the Tribes had received just compensation, the purpose of the right-of-way was to

facilitate public access, the traffic was subject to the state's control, and the easement

included no reservation of tribal dominion or control over the right-of-way. See

Strate, 520 U.S. at 455-56. In light of these facts, the Court determined that the Tribes

did not enjoy "a landowner's right to occupy and exclude" on the stretch of highway

at issue, rendering it the equivalent of non-Indian fee land within the reservation, and

that neither of Montana's exceptions applied to a commonplace automobile accident

dispute between strangers on a state public highway. Id. at 454-59. The Strate Court

concluded that the parties were therefore left to pursue their claims "in the state court

forum open to all who sustain injuries on North Dakota's highway." Id. at 459.

Similarly here, the district court determined that no statute or treaty authorized the

exercise of tribal jurisdiction over nonmembers on the state highway, the State had a

federally granted right-of-way to construct and maintain this stretch of road as a

public highway with the consent of the Red Lake Band and the payment of just

compensation to individual members, and neither of the Montana exceptions applied

because the parties were strangers involved in a commonplace automobile accident

dispute.

The Tribal Court argues on appeal that the district court's "categorical"

application of Strate ignores the Supreme Court's reasoning, which carefully

considered the nature of the particular right-of-way at issue. We respectfully disagree.

To the contrary, consistent with the analysis set out in Strate, the district court

properly considered, and gave effect to, the relevant public records and pertinent

regulations that established the federally granted right-of-way. 

Specifically, the record contains Minnesota's 1955 stipulation and application

to the Department of the Interior, pursuant to federal regulations, seeking permission
4

The state constitution creates a trunk highway system "which shall be

constructed, improved and maintained as public highways by the state." Minn. Const.

art. 14, § 2. 

-7-

to open and establish a public highway on this stretch of Indian land and stating that

it will be part of the state trunk highway system pursuant to the Constitution of the

State of Minnesota.4

 (J.A. at 57-62.) The record also contains the 1955 tribal

resolution, unanimously approved by the Red Lake Band's General Council,

referencing Minnesota's right-of-way application to construct the stretch of public

highway at issue. (Id. at 26.) The resolution indicates that the road improvement will

benefit the tribe, that the tribe waives compensation for damages, and that fair

damages should be paid to individual tribal members. (Id.) An affidavit of the

supervisor of the Minnesota Department of Transportation, Office of Land

Management, certifies the existence of the easement, that the highway is serviced and

maintained by the State of Minnesota, and that it is open to the public. (Id. at 30.)

Having considered these documents, the district court then "categorically" applied the

holding of Strate, finding it unnecessary to consider evidence of the parties' particular

conduct with regard to the right-of-way, and we agree with the district court's analysis.

Consistent with the reasoning of Strate, we give effect to the plain language of

the right-of-way granting instruments. There is no indication in the public records that

the Red Lake Band retained any "gatekeeping right" over the public highway, no

assertion that the right-of-way is no longer maintained as part of the State's highway,

and no assertion that any statute or treaty grants or retains tribal authority over

nonmembers in this situation. See Strate, 520 U.S. at 456. Therefore, the Red Lake

Band has no "right of absolute and exclusive use and occupation" of that land, id.

(internal marks omitted), and the public highway at issue, as in Strate, is the

equivalent of alienated, non-Indian land for purposes of regulating the activities of

nonmembers. See also Boxx v. Long Warrior, 265 F.3d 771, 775 (9th Cir. 2001)

(considering the plain language of a right-of-way for a National Park Service road

over Indian land and determining that the tribe had "expressly reserved no right to
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exercise dominion or control over the right-of-way" (internal marks omitted)), cert.

denied, 535 U.S. 1034 (2002), disapproved on other grounds, Smith v. Salish

Kootenai Coll., 434 F.3d 1127, 1137 n.4 (9th Cir. 2006) (en banc). 

The Tribal Court argues that additional discovery was necessary to demonstrate

that the parties to the 1955 agreement believed the right-of-way would confer only

limited rights to the State. Specifically, the Tribal Court asserts that evidence of the

course of conduct between the Red Lake Band and the State would confirm their

understanding that the right-of-way permitted only the construction, use, and

maintenance of a highway and did not confer regulatory or adjudicatory authority on

the State with regard to nonmembers. 

We need not look to course-of-conduct evidence in this case. The Court in

Strate plainly indicated that absent explicit authority otherwise, the loss of regulatory

jurisdiction is implied with the loss of a landowner's right to occupy and exclude; and

"[as] long as the stretch is maintained as part of the State's highway, the Tribe[] cannot

assert a landowner's right to occupy and exclude." 520 U.S. at 456. Cf. South Dakota

v. Bourland, 508 U.S. 679, 689 (1993) (stating that by taking reservation land for a

dam and reservoir project, "and broadly opening up those lands for public use,

Congress, through the Flood Control and Cheyenne River Acts eliminated the Tribe's

power to exclude non-Indians from these lands, and with that the incidental regulatory

jurisdiction formerly enjoyed by the Tribe"). This legal nature of a federally granted

and unrestricted right-of-way to construct and maintain a public highway as a part of

the state highway system on a reservation cannot be altered for purposes of

nonmember governance by State practices that are merely deferential to, and

respectful of, tribal authority. Cf. McDonald v. Means, 309 F.3d 530, 539 (9th Cir.

2002) (holding that a BIA road was a tribal road by considering the nature of the rightof-way at issue and finding that, although the tribe had relinquished certain

gatekeeping rights by allowing public use of the road and collaborating with the BIA

in maintaining it, the tribe had maintained other significant gatekeeping rights because
5

The Tribal Court's assertion that the State limited the scope of the right-of-way

by specifically enumerating only three subsections of the regulation is without merit.

The terms of § 256.7, as it existed in 1955, prescribed five responsibilities of the State

regarding the right-of-way, i.e., to construct and maintain the right-of-way in a

workmanlike manner, to pay promptly all damages due to landowners, to indemnify

the landowners against liability for damages arising from the applicant's use of the

lands, to restore the lands, and not to interfere with the landowner's use of the right-ofway. (J.A. at 69.) The State's omission of "special reference" to two of its obligations

to the Band, when it explicitly agreed to abide by all of them, does not reserve to the

Band any adjudicative authority over nonmembers on the public highway.

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the right-of-way was not granted to the state and the road did not form any part of the

state's highway system). We do not understand the Band to be asserting that the

parties' conduct will show that this stretch of Highways 1 and 89 is no longer a state

highway. Absent some specific language reserving regulatory or adjudicatory powers

to the Red Lake Band in the right-of-way documents or an assertion that the highway

is no longer maintained as part of the State's highway system, no further evidence is

needed. 

Alternatively, the Tribal Court argues that the State's stipulation accompanying

its application for a right-of-way did not comply with the federal regulations, and as

a result, the right-of-way is void ab initio. We respectfully disagree. The regulations

in effect at the time of the agreement required the State's right-of-way application to

include a stipulation "expressly agreeing" to the terms of 25 C.F.R. § 256.7 (1951),

which placed certain obligations on the party applying for a right-of-way. (J.A. at 69.)

The State's 1955 application included the required stipulation, stating explicitly that

the State agreed to "abide by all pertinent rules and regulations of the Department of

the Interior." (Id. at 62.) The stipulation then made "special reference" to three of the

five subsections listed in 25 C.F.R. § 256.7. Because the State expressly agreed to

abide by "all pertinent regulations," we agree with the district court's conclusion that

the failure to individually reference each subsection of § 256.7 does not render the

right-of-way void.5

 Additionally, the Red Lake Band's 1955 tribal resolution
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evidences consent to the right-of-way as requested in the application and stipulation,

and the Band has never administratively challenged the validity or scope of this rightof-way. 

Finally, the Tribal Court asserts that additional discovery is necessary to

determine the applicability of the Montana exceptions, but we conclude that the record

is adequate for this analysis as well. The first exception "covers activities of

nonmembers who enter consensual [commercial] relationships with the tribe or its

members." See Strate, 520 U.S. at 456-57 (internal marks omitted). The record

indicates that Nord was driving a semi-truck owned by Nord Trucking, a company

that had a consensual commercial relationship with the Red Lake Band to haul and

remove timber from the reservation, but the accident gave rise to a simple tort claim

between strangers, not a dispute arising out of the commercial relationship. The

accident did not involve the Red Lake Band itself, and although the individual injured

was a member of the Red Lake Band, he was not a party to the commercial

relationship. The Tribal Court asserts that additional discovery is necessary to

determine the facts regarding whether Nord was driving in connection with a contract

with the Red Lake Band or on a personal errand. We conclude that such facts would

not be material in this situation because the dispute merely involves the tortious

conduct of "a run-of-the-mill highway accident" between strangers, and no amount of

discovery can alter the nature of that claim. See id. at 457 (internal marks omitted)

(holding that the first exception did not apply to a highway traffic accident dispute that

was "distinctly non-tribal in nature" (internal marks omitted)); see also Plains

Commerce Bank, 491 F.3d at 886-87 (explaining that under Strate, the consensual

relationship exception of Montana does not apply to a purely accidental encounter

between two strangers but requires a nexus between a preexisting consensual

commercial relationship between the parties and the personal injury claim). 

The second Montana exception does not apply because Strate determined as a

matter of law that the lack of tribal jurisdiction over a tort claim arising from an
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ordinary automobile accident on a state highway running through Indian land does not

threaten or have any direct effect on "the political integrity, economic security, or the

health or welfare of the tribe." See Strate, 520 U.S. at 457-59 (internal marks

omitted). The only distinguishing fact is that Strate involved a non-Indian plaintiff

whereas the injured plaintiff in this case is a member of the Red Lake Band, but this

distinction is insignificant. The Court in Strate expressly cautioned against reading

the second Montana exception in isolation to apply to the personal health and welfare

of a few individual members. See id. at 457-58 ("Undoubtedly, those who drive

carelessly on a public highway running through a reservation endanger all in the

vicinity, and surely jeopardize the safety of tribal members. But if Montana's second

exception requires no more, the exception would severely shrink the rule."). "[A]

tribe's inherent power does not reach beyond what is necessary to protect tribal selfgovernment or to control internal relations." Id. at 459 (internal marks omitted). 

We do not disagree with the Tribal Court's assertion that the Red Lake Band is

unique in many respects and has long opposed intrusions on its land. See, e.g., 28

U.S.C. § 1360 (specifically exempting the Red Lake Band from legislation extending

the state's civil jurisdiction over claims involving Indians); County of Beltrami v.

County of Hennepin, 119 N.W.2d 25, 30 (Minn. 1963) (noting that the Red Lake

Band was excluded from the legislation at its own insistence). However, we cannot

agree with the assertion that, contrary to the language of Strate, the Band's ability to

regulate and to exercise adjudicatory authority over nonmembers on the highway is

important to its tribal sovereignty. The Band exercised its sovereignty by consenting

to a right-of-way that permitted the State to construct and maintain a public highway

on its reservation, without specifically reserving any regulatory or adjudicatory

authority over nonmembers using the highway. Again, as long as the highway

remains part of the State's highway system, the Red Lake Band has lost its "right of

absolute and exclusive use and occupation, [which] implies the loss of regulatory

jurisdiction over the use of the land by others." Strate, 520 U.S. at 456 (internal marks

omitted). 
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III.

The district court did not abuse its discretion in refusing to permit further

discovery, and summary judgment, declaring that the Tribal Court lacked jurisdiction

over this dispute, was proper as a matter of law. Accordingly, we affirm the judgment

of the district court. 

MURPHY, Circuit Judge, concurring.

Although I concur in the result and in most of the court's analysis, I write

separately to highlight more fully the unique legal status of the Red Lake Band of

Chippewa Indians and the Red Lake Reservation. In respect of the band's sovereignty

and special history, it is proper to examine all the circumstances thoroughly before its

courts are divested of jurisdiction.

It is difficult to overstate the differences between the Red Lake Reservation and

nearly all other Indian reservations. The Red Lake Band has retained extensive

sovereignty over its reservation, subject only to federal law which specifically

addresses Red Lake and to preemptive federal criminal law. It has retained much of

the autonomy and sovereignty that existed on all reservations at the time the Supreme

Court decided Worcester v. Georgia, 31 U.S. 515, 561 (1832), which recognized that

Indian tribes maintained a government to government relationship with the United

States to which the states were not parties. See Comm'r of Taxation v. Brun, 174

N.W.2d 120, 122 (Minn. 1970). Although the Court has long since abandoned the

Worcester rule that "'the laws of [a State] can have no force'" within reservation

boundaries, Nevada v. Hicks, 533 U.S. 353, 361–62 (2001), quoting Worcester, 31

U.S. at 561, that rule largely holds true as to the Red Lake Reservation. 

Unlike other tribes and reservations, including the Three Affiliated Tribes of

the Fort Berthold Indian Reservation where the accident in Strate occurred, the Red
6

The tribe ceded large portions of the original reservation to the United States

but has never ceded the largest part of the current reservation centered around Lower

Red Lake where the accident at issue occurred. See United States v. Minnesota, 466

F. Supp. 1382, 1386–87 (D. Minn. 1979) (describing three treaties by which the Red

Lake Band ceded land to the federal government). The Red Lake Band refers to this

land as the "diminished" reservation.

7

The Red Lake Reservation is apparently one of only two reservations in the

nation to enjoy this status.

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Lake Band has retained its government to government relationship with the United

States. As part of its retention of significant sovereignty, the tribe was only one of

three to resist the extension of state criminal and civil jurisdiction to cover claims

involving Indians. See 18 U.S.C. § 1162; 25 U.S.C. §§ 1321–26; 28 U.S.C. § 1360;

but see State v. Holthusen, 113 N.W.2d 180, 187–88 (Minn. 1962) (state has

jurisdiction over crimes committed on the Red Lake Reservation by non Indians

against non Indians). 

Also unlike nearly all other reservations, the land of the Red Lake Reservation

"has never been formally ceded to the United States."6

 Brun, 174 N.W.2d at 122 ; see

Minnesota v. Hitchcock, 185 U.S. 373 (1902) (detailed history of the formation of the

Red Lake Reservation). The Red Lake Band successfully resisted allotment, making

the reservation a "closed" reservation in which all lands are held communally by the

tribe.7

 This status has made Red Lake perhaps the most insular and nonintegrated

reservation in the United States; it has also preserved for the band an independence

not experienced on other reservations. The tribe has the right to control who is

allowed to enter and to live on the reservation. At one time the tribe required

nonmembers working or engaging in business on the reservation to apply for

passports. In the past the tribal council has barred journalists from the reservation.

After the tragic shootings at Red Lake High School in March 2005, as one example,

journalists who ventured onto the reservation past a designated parking lot faced arrest

for trespass. 
8

Unlike Strate the injured here, Donald Kelly, is a member of the Red Lake

Band and therefore the band was not necessarily a "'stranger[] to the accident.'" Strate

v. A-1 Contractors, 520 U.S. 438, 457 (1997), quoting A-1 Contractors v. Strate, 76

F.3d 930, 940 (8th Cir. 1996). Although the other driver, Chad Nord, is a

nonmember, he was driving a vehicle owned by Nord Trucking which had a contract

with the band to haul timber from the reservation. See Montana v. United States, 450

U.S. 565–66 (1981) ("A tribe may regulate, through taxation, licensing, or other

means, the activities of nonmembers who enter consensual relationships with the tribe

or its members, through commercial dealing, contracts, leases, or other

arrangements."). There is, however, no evidence suggesting that that relationship had

any causal effect on the accident.

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The state's approach to the Red Lake Reservation is reflected in the Minnesota

Department of Transportation's manner of dealing with the tribe. Employee Joseph

McKinnon's affidavit indicates that the Department treats the Red Lake Reservation

as a foreign jurisdiction and requests permission from the tribe before entering the

reservation to perform maintenance work on the state highway, unlike the manner in

which the state treats all other Minnesota reservations. Moreover, state law

enforcement agencies, including the state patrol, do not have authority over members

on the reservation, even on the state highway. See Red Lake Band of Chippewa

Indians v. State, 248 N.W.2d 722, 728 (Minn. 1976); see also State v. Stone, 572

N.W.2d 725 (Minn. 1997) (state may not enforce driving laws against members of an

Indian tribe within the tribe's reservation). 

Despite the fact that the accident in this case involved a member of the band8

and despite the significant difference between Red Lake and the Fort Berthold Indian

Reservation, I agree that the record shows that this accident occurred on a state

highway for which Minnesota had obtained a valid right of way that is open to the

public and that is maintained as part of the state trunk highway system. I therefore

agree that the district court did not err by granting summary judgment to the Nords.
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While I cannot agree with the court's conclusion that "the facts of the present

case are on all fours with Strate," I do agree that the district court did not abuse its

discretion by denying the Rule 56(f) tribal court request for additional time to conduct

discovery. The tribal court did not make its discovery needs known to the district

court in a timely fashion. This federal action was filed on June 10, 2005, and it was

only on May 1, 2006, after the Nords had filed for summary judgment and after the

tribal court itself had moved for a stay of discovery, that it requested additional

discovery. While the tribal court's choice to concentrate on legal theories for

dismissal rather than to engage in expensive discovery is understandable, there was

considerable opportunity exclusive of stayed time during which it could have pursued

its discovery needs.

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