South Dakota v. Bourland, 508 U.S. 679, 689, 113 S.Ct. 2309, 124 L.Ed.2d 606 (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>). We do not understand the Band to be asserting
holding that mere use of a road will not make a road a public road even though such use is with the knowledge and consent of the landowner unless the use is accompanied by  recognition by public authority or by its maintainance sic holding that a bia road was a tribal road by considering the nature of the rightofway 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 the rightofway was not granted to the state and the road did not form any part of the states highway system holding that a subsequent abandonment of a public rightofway over such a road has no effect on a private easement owned by an abutting landowner holding road was still a public highway although fifty years had passed since the road was used by the public holding that a road not open to the public at all times was not a highway