The Mandan, Hidatsa and Arikara Nation is suing the federal government to enforce tribal rights to the lands and minerals under the Missouri River within its reservation.
For more than 80 years, the federal government has consistently maintained that lands underlying the Missouri River belong to the tribes, rather than the state of North Dakota.
In 1978, the Department of Interior Board of Land Appeals ruled that submerged lands are part of the reservation, a decision the state did not appeal.
Despite this long history, the Interior Department’s solicitor general recently issued an opinion purporting to reverse the 1978 decision and claiming North Dakota owns the land and minerals under the Missouri River within the reservation.
The solicitor’s opinion didn’t appear out of nowhere. It was the result of lobbying by our state’s elected officials, including Attorney General Wayne Stenehjem, who wrote a letter in 2017 urging the Interior Department to change its position.
Our elected leaders are attempting to overturn decades of precedent and deprive the MHA Nation of hundreds of millions of dollars in oil and gas royalties.
In September of last year, Sen. Kevin Cramer, R-N.D., praised the Senate’s confirmation of the solicitor general and looked forward to working with him on issues in North Dakota, including “disputed mineral rights.” But the dispute was settled decades ago. The only thing that’s changed is the state now regrets its failure to appeal the 1978 decision.
Gov. Doug Burgum welcomed the solicitor general’s opinion and callously claimed it creates “an opportunity for (the state) to collaborate with the tribe.” The governor made that remark on a radio program, so it’s hard to know whether he managed to keep a straight face. The governor might find it difficult to start a discussion with the MHA Nation, as the tribes have wisely decided to collaborate with their lawyers instead.
The outcome of a lawsuit is always hard to predict, especially in the realm of federal American Indian law. After two centuries of shifting legal doctrines and conflicting court precedents, it is among the most unsettled areas of American jurisprudence.
Depending on how the case progresses, the MHA Nation certainly could lose. Under what’s known as the Equal Footing Doctrine, courts start with a presumption that states own the land beneath navigable waters. This column does not allow for a thorough discussion of that complicated issue. Suffice it to say, U.S. Supreme Court precedent will make it difficult, though not impossible, for the MHA Nation to prevail if the case ultimately is decided based on the Equal Footing Doctrine alone.
If the court focuses on the real issue, however, the MHA Nation should prevail. The fundamental legal question is whether a political appointee has authority to overturn a decision of the Interior Board of Land Appeals. He almost certainly does not. This case is what lawyers call res judicata, meaning it has been decided and cannot be re-litigated by the same parties.
The state was party to the case that resulted in the 1978 decision in favor of the MHA Nation and could have appealed in federal court. It chose not to, so the decision stands.
Enlisting political allies in Washington to overturn a longstanding legal decision that upholds tribal rights shows the same arrogance and deceit that have been unfortunate hallmarks of the government’s posture toward Indian tribes for generations.
One would have hoped that by this point in our history, the government might finally deal with tribal nations in an honest and fair manner. Sadly, it appears that our state’s leaders would rather continue the centuries-old tradition of duplicitous deals and broken promises.
Tory Jackson is an attorney and writer. His legal practice involves real estate and business matters, with a particular focus on historic rehabilitation projects. He holds degrees from Bismarck State College, the University of Virginia and Harvard Law School. He lives in Bismarck, where he was born and raised.
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