There’s land under the water of the Missouri, rich with oil.
Who owns that land and its mineral rights has been the center of debate for years.
On May 26, an opinion released by the Department of Interior says the state owns the land, specifically on the Fort Berthold reservation. This opinion goes against what the Department of Interior has been saying since the year 1936, including an opinion as recent as 2017.
But, MHA Nation Chairman Mark Fox says not so fast.
“You’re talking about trying to overturn something that’s been standing for 84 years, you better do your homework right,” he added.
An argument between the state and the tribe started in October 2017, following the former solicitor’s memo. North Dakota Attorney General Wayne Stenehjem wrote a letter to the Interior Department asking for the 2017 opinion to be reviewed.
“In January of ’18 then, the Trump Administration came through, and then the Department of Interior decided to kind of put it on pause and review it. And it took a couple of years, and as you know in May of 2020, they released a new ‘M’ opinion,” shared Jodi Smith, the Commissioner of the Board of University and School Trust Lands.
She says the state stands by the latest opinion.
“We object to it. We also don’t trust the process, and so, we knew the great danger we’re in,” Chairman Fox shared.
Now, over two-and-a-half years after the AG’s letter, more than $100 million in royalties are in suspense, most of which the Chairman says are being held by the oil companies themselves.
“Which is a great danger in-and-of-itself, because oil companies can go bankrupt. We’ve already had one on Fort Berthold. If they get in trouble fiscally, like during a pandemic, then all of a sudden we lose money. Everybody loses money,” the Chairman expressed.
According to Smith, it all comes down to differing interpretations of two U.S. executive orders, one in 1870 and one in 1880, in which President Ulysses S. Grant established the Fort Berthold Reservation.
“My understanding per the opinion that was just released is it’s that those opinions or that the treaties didn’t specifically layout that the river would be conveyed to the tribes,” Smith added.
The state claims it took ownership of the original Missouri River bed when North Dakota became a state in 1889.
“It was never part of the General Allotment Act of 1887 in which individuals got pieces of it. It has always been owned by the Three Affiliated Tribes. So the state coming in and taking it, they’re affecting us as a whole. As a tribal nation, we own that river,” Chairman Fox refuted.
Ultimately, the language in both orders outlines MHA Nation’s right to the land up to the outer bank of the River. Up until this May 26 opinion, President Grant’s executive orders have always been interpreted by the Department of the Interior to include the River as a part of tribal land.
Fox says the Department of the Interior is supposed to be a trustee of Native Americans. He says it’s their duty to protect tribal lands, not to play into politics.
“Without waiting for our data and our research to be completed, an opinion comes out in a very short period of time after a meeting between the North Dakota Congressional Rep., and our Governor and the President,” Chairman Fox said.
He says MHA Nation is preparing for litigation against the state now.
Smith says her department, along with the Governor’s Office and the Attorney General, are hoping to sit down with MHA Nation leaders to come up with a solution.