MHA sues USA: Nations at odds over Missouri riverbed rights

NEW TOWN, North Dakota – The Mandan Hidatsa and Arikara (MHA) Nation, headquartered here, filed a multimillion-dollar lawsuit against the United States on July 15, seeking to overturn an order that reassigns the Three Confederated Tribes’ Missouri riverbed rights to the state of North Dakota.

The case filed in the Court of Federal Claims applies to rights on Ft. Berthold Indian Reservation lands inundated by the completion in 1953 of the Garrison Dam construction and the subsequent formation of colossal Lake Sakakawea, which flooded one-fourth of the reservation.

“The Department of Interior violated both its fiduciary duty as the tribes’ trustee and its treaty obligations when DOI illegally took away the MHA Nation’s rights to the Missouri riverbed and gave these rights to the state of North Dakota,” Chair Mark Fox declared.

He referred to DOI Solicitor Daniel Jorjani’s May 26 opinion affirming, “I have concluded that the State of North Dakota is the legal owner of submerged lands beneath the Missouri River where it flows through the reservation. This opinion alters previous departmental decisions related to this issue.”

Jorjani said his order “supersedes” a 1936 solicitor’s opinion to the contrary. He advised DOI’s Bureau of Indian Affairs and the Bureau of Land Management to “take any actions deemed necessarily to comply with this opinion, to include the withdrawal of any existing oil and gas permits for extraction in submerged lands beneath the Missouri River.”

The so-called “M-Opinion” would “overturn over 80 years of existing DOI precedent, two prior DOI M-Opinions and a binding DOI Interior Board of Land Appeals decision, all finding that the Missouri riverbed was held in trust by the federal government for the MHA Nation before North Dakota statehood,” Fox said in a written release.

The National Congress of American Indians (NCAI) threw its weight behind the tribes, reiterating the organization’s advocacy for government-to-government consultation between the MHA Nation and the Department of the Interior’s Office of the Solicitor “to confirm the longstanding Executive and Congressional actions declaring that the Missouri River bed within the Fort Berthold Reservation is owned by the MHA Nation.”

NCAI President Fawn Sharp said “a history of longstanding, well-settled, and still applicable legal precedents” indicate “there should be no question as to the validity of the MHA Nation’s claims. Upholding treaty obligations is not optional. It is mandatory.”

NCAI urged Interior to immediately withdraw Solicitor’s Opinion M-37056 as an unwarranted threat to tribal trust assets.

“The fiduciary obligation of the United States is to protect and preserve tribal trust assets in order to ensure tribal nations have the resources needed to provide permanent homelands for present and future generations of their citizens,” it said in a written statement.

The statement is backed by an NCAI resolution, which details a history of the issue, explaining:

“The MHA Nation’s Ft. Berthold Indian Reservation was carved out of its aboriginal territory on both sides of the Missouri River and included the Missouri River as recognized in the 1851 Treaty of Ft. Laramie and subsequent executive orders, including orders in 1870 and 1880 describing the reservation boundary as encompassing the Missouri River.

“In 1936, Nathan R. Margold, Solicitor of the Department of Interior issued a Solicitor’s Opinion determining that the bed of the Missouri River was part of the territory reserved to the MHA Nation prior to the admission of North Dakota to the Union.

“In 1979, the Interior Board of Land Appeals (IBLA) reaffirmed Solicitor Margold’s 1936 Solicitor’s Opinion and rejected arguments by the State of North Dakota that the riverbed became the property of North Dakota when it became a state in 1889, a decision which North Dakota never appealed.

“In 1984, Congress passed the Ft. Berthold Reservation Mineral Restoration Act, P.L. 98-602, 98 Stat. 3152, which returned to the MHA Nation its rights to minerals underneath lands taken by the United States for the Garrison Project and its reservoir.

“On Aug. 2, 2011, the MHA Nation requested that the Department of the Interior take immediate action to complete title documents and maps showing that the Missouri riverbed is part of the Ft. Berthold Indian Reservation.

“The Bureau of Indian Affairs (BIA) was taking the necessary actions to implement the department’s prior decisions.

“On  Jan. 18, 2017, following an extensive review of the history and law regarding the MHA Nation, the Missouri River and the riverbed, the Acting Solicitor of the Department of Interior again reaffirmed and elaborated on the conclusions reached in both the 1936 Solicitor’s Opinion and the 1979 IBLA decision with a new Solicitor’s Opinion M-37044.

“On June 8, 2018, without any government-to-government consultation with the MHA Nation, the Principal Deputy Solicitor issued an opinion numbered M-37052 that partially suspended and temporarily withdrew Solicitor’s Opinion M-37044 to further review and expand the historical record through a professional historian.

“Solicitor’s Opinion M-37052 specifically states that it has no effect on the longstanding and well-settled 1936 Solicitor’s Opinion and the 1979 IBLA decision confirming that the Missouri riverbed within the Ft. Berthold Indian Reservation is owned by the MHA Nation.”

NCAI resolved to call on Interior and the BIA to complete title and mapping work to avoid “a damaging effect on the MHA Nation’s efforts to develop energy resources and promote economic development on the Ft. Berthold Indian Reservation and contribute to the United States’ domestic energy supply.”

As a result of the Garrison Dam flooding, the tribes lost approximately 95 percent of its farming land, as well as entire towns, educational and medical facilities, road systems, timber sources, plant and animal habitats, and cultural places,” the draft Environmental Assessment for a riverbed oil pipeline notes.

 

(Contact Talli Nauman at talli.nauman@gmail.com)

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