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 Affiliated 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.
— National Congress of American Indians (@NCAI1944) July 15, 2020
“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.
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.