FARGO, N.D. (AP) — Leaders of the Mandan, Hidatsa and Arikara Nation in North Dakota and others are challenging a U.S. Interior Department opinion rolling back an Obama-era memo stating that mineral rights under the original Missouri River bed should belong to the Three Affiliated Tribes.
The memo filed May 26 by Daniel Jorjani, solicitor for the department, said a review by Historical Research Associates Inc. shows the state is the legal owner of submerged lands beneath the river where it flows through the Fort Berthold Reservation. That contradicts a January 2017 memo by former solicitor Hilary Tompkins, the department secretary under Obama and enrolled member of the Navajo Nation.
At stake is an estimated $100 million in oil royalties waiting in escrow to be claimed as well as any future payments. Three Affiliated Tribes Chairman Mark Fox said he plans to take legal action "ASAP," likely with a federal lawsuit.
"We're going to continue to fight," Fox said. "I'm concerned that the state government is going to do everything that it can to get that money into their accounts and worry about litigation some distant day."
The state successfully lobbied the Interior Department to put the issue on hold in order to review the "underlying historical record" of ownership of the river. That came after North Dakota Attorney General Wayne Stenehjem wrote a letter to the Interior Department in October 2017 asking that the Tompkins opinion be withdrawn or suspended.
Carl J. Artman, former Assistant Secretary of Interior for Indian Affairs under George W. Bush, said he was struck by the fact that Jorjani's opinion contained two pages of historical explanation when the lack of adequate background was the reason for suspending the Tompkins memo. The first 16 pages of the Tompkins memo reviewed the history, cultural aspect and treaties involving the tribe.
Artman added that the Jorjani decision goes against three opinions, by former solicitor Nathan Margold in 1936, by the Interior Board of Land Appeals in 1979, and by Tompkins. Those memos confirmed the tribes' ownership of the the Missouri River, which was altered when the U.S. Army Corps of Engineers built the Garrison Dam in the 1950s and created Lake Sakakawea.
"That I thought was something you can rely on almost as much as concrete can hold your weight," Artman said. "That is precedent. This seems almost like a taking on behalf of the federal government."
The state maintains it assumed ownership of the riverbed when North Dakota became a state in 1889, citing a constitutional principle known as the Equal Footing Doctrine. Under that rule, Jorjani wrote, the Three Affiliated Tribes claim "is not dissimilar" to one by the Red Lake Indian Reservation of Minnesota that was rejected by the U.S. Supreme Court.
"After considering the historical record in light of Supreme Court precedent as it relates to the Equal Footing Doctrine, I conclude that the circumstances here are most similar to those cases where the Supreme Court has held that submerged lands were not reserved by the federal government," Jorjani said.
Fox said the Interior Department, as trustee of American Indian lands, has a fiduciary duty to protect the tribes and its property rights. Instead, according to Fox, he was not consulted on the opinion and he was blindsided in the middle of the coronavirus crisis that has engulfed the tribe.
"You get that kind of news during a pandemic when we're struggling so hard anyway because the federal government has dropped the ball in terms of helping us ... it would be like somebody telling you when you're fighting a fire that you have been evicted from your house," Fox said.
Mike Nowatzki, spokesman for North Dakota Gov. Burgum, said Lt. Gov. Brent Sanford notified Fox in advance about the opinion and followed up with a call. Nowatzki said Burgum has a track record of reaching out to Fox and all the tribal chairs and cited an oil tax revenue sharing compact that Fox promoted.
Burgum is willing to talk with "all tribal nations for the benefit of all North Dakotans, including on the topic of riverbed minerals," Nowatzki said. Fox said the revenue in escrow is "non-negotiable."
A tweet by Twyla Baker, president of the tribe's Nueta Hidatsa Sahnish College, kicked off a heated discussion on social media when she described the move as nothing more than a land grab.
"This furthers the dispossession of indigenous people," she wrote. "This cannot be a coincidence."