Weeks ago, KX News reported the U.S. Department of Interior reversed an opinion that gave ownership of the Missouri Riverbed on the Fort Berthold reservation to the state.
This came eight months after the Mandan, Hidatsa and Arikara Nation sued the federal department and the state over this, and the more than $100 million in mineral royalties at stake.
So, now that the opinion is reversed, is the lawsuit moot?
MHA Nation, the Department of the Interior and the state agree that part of the lawsuit is resolved, and the other half will still require a lengthy judicial process.
Between the Tribe and the state, it all goes back to a fundamental disagreement over who owns the river.
“MHA brought suit, seeking to do a number of things. One of the main things was to ask the court to strike down this erroneous legal opinion from the Department of Interior,” shared Tim Purdon, an attorney representing MHA Nation.
“This was an opinion that was issued that took away the Tribe’s right to the riverbed on the reservation and gave it to the state of North Dakota.”
That 2020 opinion went against what the Department of Interior has been saying since 1936, including an opinion as recent as 2017.
“That piece of the case has now been won by the Tribe,” Purdon said.
The court did not have to act on Counts I and II, because, as North Dakota Land Commissioner Jodi Smith explained, “…the Department of Interior has withdrawn that opinion, it no longer exists, and therefore, there’s nothing left for the courts to do.”
This is the language in responses filed to the U.S. District Court for the District of Columbia by the state, the Interior Department and MHA Nation.
“The Department of Interior is the trustee for the Tribe. They have a trust responsibility,” Purdon added. “I mean, imagine in your personal life, having a trust and a trustee. You have a right to know from that trustee, ‘Hey, where’s my money going?'”
The Robins Kaplan LLP Partner is referring to the remainder of the lawsuit.
In Count III, the Tribe requests an accounting of the Missouri Riverbed property, including an unclear sum of money in mineral royalties currently in escrow. Count IV would order the Interior Department to document MHA Nation’s title to the river.
Purdon says the state is not a party to these remaining claims.
“It’s a dispute between the Tribe and its trustee over the trustee’s responsibility to protect the Tribe’s mineral interest and ownership interest,” he explained.
“The Tribe’s position is going to be that under the law, the state of North Dakota has no standing to be a part of that dispute.”
“You know, I think we just want to have a voice at the table,” Smith said.
The state land commissioner says if the case continues, the Land Board will file a motion to intervene on Counts III and IV because if ownership of the riverbed goes to the Tribe, the state would no longer collect those mineral royalties.
“The state has always claimed it’s owned that because it’s a navigable body of water. And so, upon statehood, all of the states owned both the surface (or the water) and then they control that, right? Because they had to bring trade up the river,” Smith explained.
However, this type of title dispute is new in the last about ten years with the advent of horizontal drilling, allowing for oil extraction underwater.
MHA Nation says the state’s ownership of navigable waters does not apply to tribal lands.
“This isn’t something that’s only been decided in the last few years. There are decades and decades of Department of Interior guidance,” Purdon added.
“…and beyond that, the fact that since time immemorial, the MHA Nation has made its home along the riverbed.”
Ultimately, it’s up to the court to rule on the mootness issue on all counts.
MHA Nation also filed a case in the Court of Federal Claims last summer seeking damages. That is pending the outcome of the District of D.C. case.
As for the gap left by the reversed opinion, the Interior Department is reviewing the issue. It’s unclear when or if a new legal opinion will be released.