Missouri River riverbed

BISMARCK, N.D. — The Mandan, Hidatsa and Arikara Nation (MHA Nation), also known as the Three Affiliated Tribes, is suing the U.S. government due to the Department of the Interior’s failure to complete title and mapping work in a portion of the Missouri River riverbed within the Fort Berthold Indian Reservation in North Dakota.

According to the lawsuit, filed on Wednesday, the Interior Department is seeking to illegally strip the MHA Nation of part of their reservation that was ceded to the tribes before North Dakota became a state.

At issue is mineral rights ownership underneath the Missouri River that North Dakota maintains is the state’s property. The tribes argue that their ownership of the land in the Missouri riverbed in question has been upheld by several federal court opinions dating back to 1936.

In May 2020, the Interior Department issued an opinion that reversed those federal opinions that said the land belonged to the state of North Dakota.

In 1936, Nathan R. Margold, Solicitor of the Department of the Interior issued a Solicitor’s Opinion determining that the bed of the Missouri River was part of the territory reserved to the tribes before North Dakota became a state.

North Dakota appealed the decision and in 1979, the Interior Board of Land Appeals (IBLA) reaffirmed Solicitor Margold’s 1936 Solicitor’s Opinion and rejected arguments by the state that the riverbed became the property of North Dakota when it became a state in 1889.

In 1984, Congress passed the Fort 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 tribes requested that the Interior Department take immediate action to complete title documents and maps showing that the Missouri River riverbed is part of the Fort Berthold Indian Reservation.

With two days left of the Obama presidency, on Jan. 18, 2017, following an extensive review of the history and law regarding the tribe’s ownership of the Missouri River riverbed, the Acting Solicitor of the Interior Department again reaffirmed and elaborated on the conclusions reached in both the 1936 Solicitor’s Opinion and the 1979 IBLA decision with Solicitor Opinion M-37044.

With President Donald Trump in the White House, on June 8, 2018, without any government-to-government consultation, the Interior Department’s principal deputy solicitor reversed 82 years of federal government opinions on the Missouri River riverbed with an opinion that partially suspended and temporarily withdrew Solicitor Opinion M-37044 to further review and expand the historical record through a professional historian.

Wednesday’s lawsuit by the MHA Nation seeks to gain proper documentation from the Interior Department.

MHA Nation chairman Mark Fox said the Interior Department, as trustee of tribal lands, ”Violated both its fiduciary duty as the tribe’s trustee and its treaty obligations” in its May 2020 opinion, which stated that North Dakota is the legal owner of the lands under the portion of the Missouri River that flows through the Fort Berthold Indian Reservation.

After Wednesday’s filing, the National Congress of American Indians (NCAI) issued a statement supporting the MHA Nation. 

“The MHA Nation’s rights to the Missouri River riverbed minerals have been reaffirmed through a history of longstanding, well-settled, and still applicable legal precedents, and there should be no question as to the validity of the Nation’s claims,” NCAI president Fawn Sharp said in the statement. “We cannot reiterate strongly enough that consultation with tribal nations and upholding treaty obligations is not optional. It is mandatory.”

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Levi Rickert
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Levi "Calm Before the Storm" Rickert (Prairie Band Potawatomi Nation) is the founder, publisher and editor of Native News Online. Rickert was awarded Best Column 2021 Native Media Award for the print/online category by the Native American Journalists Association. He serves on the advisory board of the Multicultural Media Correspondents Association. He can be reached at [email protected].