FARGO — The Mandan, Hidatsa and Arikara Nation is suing the federal government in a double-barreled legal effort to secure land and collect mineral royalties in a dispute over ownership of the bed of the Missouri River flowing through the Fort Berthold Indian Reservation.
The dispute stems from a reversal of more than 80 years of decisions by the U.S. Department of the Interior — charged with protecting the tribes’ interests — and alleged violations of treaties dating back to 1825.
At stake is more than $200 million in oil and gas royalties the tribes say the federal government failed to collect on their behalf, hundreds of millions of dollars involving the value of the riverbed — now covered by sprawling Lake Sakakawea — and future royalties.
In two lawsuits, the tribes contend North Dakota lobbied the federal government to reverse a series of decisions and legal opinions by the Department of the Interior dating back to 1936 and as recent as 2017.
The reversal, granted in May by a senior Interior lawyer at the state’s request, stripped provisions addressing the tribes’ ownership of minerals beneath the original bed of the Missouri River.
The memorandum opinion by the senior Interior lawyer concluded North Dakota is the legal owner of submerged lands beneath the Missouri River flowing through the Fort Berthold Reservation.
“This unsupportable decision is a bald attempt to effectuate an unlawful transfer of the MHA Nation’s valuable land to the State of North Dakota,” the tribes argued in a lawsuit filed Wednesday, July 15, in the U.S. Court of Federal Claims.
That lawsuit seeks monetary damages to be determined at trial for the Department of the Interior’s breach of trust and for taking property without compensation.
“This lawsuit in the Court of Federal Claims seeks to hold DOI financially responsible for this illegal taking of our property rights and for the breach of the duties DOI owes to the MHA Nation under its trust responsibilities and our treaties,” Mark Fox, chairman of the tribes, said in a statement.
A second lawsuit, filed Thursday, July 16, in U.S. District Court for the District of Columbia, seeks a return of the land or payment for the value of what the government took and gave to North Dakota.
The tribes also are seeking to overturn the latest Interior memorandum opinion, restoring riverbed ownership and mineral interests to the tribes, headquartered in New Town.
The May 2020 legal opinion reversing decades of official federal policy was “a betrayal and utter abdication of the United States’ fiduciary obligations to the MHA Nation,” the lawsuit filed in the Court of Claims said. “It is also a breach of treaty, agreements, and statutes and an unconstitutional taking.”
Timothy Purdon, a Bismarck lawyer who represents the tribes, said two lawsuits were required since different legal remedies are available in the two court jurisdictions.
One Department of the Interior decision determining that the tribes own the riverbed within the reservation came in 1949, when the government took 150,000 acres from the Fort Berthold reservation before the construction of the Garrison Dam, which created Lake Sakakawea, submerging a quarter of the tribes' land base and dislocating 90% of families.
That decision was upheld in a 1979 case. North Dakota intervened in the case but did not challenge the administrative law judge’s findings, which the tribes argue now is settled law establishing their ownership of the riverbed and associated mineral rights inside the reservation.
The tribes also assert ownership of the riverbed in treaties. The first treaty, in 1825, recognized the tribes’ “country” and promised payment for property taken. The Fort Laramie Treaty of 1851 set aside vast territory for the tribes south and west of the Missouri River.
President Ulysses Grant limited the boundaries of Fort Berthold by executive order in 1870, granting 7.8 million acres for the reservation, which later was significantly reduced by subsequent treaties, but expressly included the outer riverbank of the Missouri within the reservation’s boundaries.