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North Dakota renews claim to oil and gas royalties the federal government says belong to tribe

The Mandan, Hidatsa and Arikara Nation calls the state's claim "contrary to the legal and historical record" and vows to fight to protect its rights to ancestral lands and waters.

Mandan, Hidatsa and Arikara 1851 treaty map
This map shows the land of the Mandan, Hidatsa and Arikara as recognized by an 1851 treaty. The borders of the Fort Berthold Reservation later were substantially reduced. The tribes are headquartered in New Town, North Dakota.
Special to The Forum
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NEW TOWN, N.D. — North Dakota is notifying oil companies that it claims ownership of the bed of the Missouri River — and associated mineral wealth — as it flows through the Fort Berthold Indian Reservation in the latest salvo in a legal feud over ownership.

At stake are claims to oil and gas royalties the state estimated at more than $116 million as of August 2020.

The state’s latest action, in letters sent to oil companies active in the Bakken Formation, comes despite a determination by the U.S. Department of Interior that the Mandan, Hidatsa and Arikara Nation owns the riverbed and therefore is entitled to royalties on oil and gas produced beneath the historic riverbed, now within Lake Sakakawea.

The ownership dispute is pending before a U.S. District Court judge in the District of Columbia in a lawsuit the tribe filed after the Trump administration reversed decades of federal policy holding that the riverbed and mineral wealth belongs to the Mandan, Hidatsa and Arikara Nation, held in trust by the U.S. government.

The Biden administration in February overturned the Trump administration’s opinion, restoring federal policy recognizing the tribe as the owner in a line of decisions dating back eight decades. The tribe also asserts ownership under a series of treaties dating back to 1825.

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In a letter dated July 1, the director of the Bureau of Indian Affairs wrote to oil companies, noting the Department of the Interior and state of North Dakota disputed ownership of the minerals and directing all producers to escrow bonuses and royalties owed on production of riverbed oil and gas.

Bureau of Indian Affairs Director Darryl LaCounte also noted the Interior’s position that the riverbed minerals belong to the tribe.

“Given these developments, the Department is directing all oil and gas producers to provide an accounting of the royalties and bonuses you have derived from Riverbed minerals, and the location of the funds,” LaCounte wrote in the letter.

The Mandan, Hidatsa and Arikara Nation, which is suing in part to force an accounting of the disputed royalties, began contacting Bakken oil producers seeking payment of royalties for oil and gas pumped from beneath the riverbed.

That, in turn, prompted Matthew Sagsveen, North Dakota’s solicitor general, to write to oil and gas producers to notify them that the state claimed ownership of the riverbed and royalties.

In the letter, Sagsveen challenged the Department of the Interior’s position that the tribe owns the riverbed and royalties, saying the latest opinion “errs and omits key legal and factual information in its review of historical background relating to ownership of the affected mineral interests.”

North Dakota bases its claim on the Constitution’s equal footing doctrine, which holds that a state holds ownership of navigable waters within its boundaries unless Congress specifies otherwise.

“No court to date has ruled that the MHA Nation owns the riverbed and mineral interests at issue,” Sagsveen wrote.

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Mark Fox, chairman of the Mandan, Hidatsa and Arikara Nation, denounced the state’s claim of ownership in letters to oil companies, which he called “contrary to the legal and historical record."

“The State of North Dakota continues to show their lack of respect for the legal precedents and people who have paid with their lives to preserve these fragments of our ancestral lands and waters,” Fox said in a statement. “For centuries, the federal government has affirmed our right to the Missouri Riverbed.”

The state is trying to deprive the Mandan, Hidatsa and Arikara Nation of money that would benefit more than the tribe, said Timothy Purdon, a lawyer who represents the tribe.

“This money could be used to help the tribe, tribal citizens, which strengthens the state of North Dakota, as well,” he said.

Patrick Springer first joined The Forum in 1985. He covers a wide range of subjects including health care, energy and population trends. Email address: pspringer@forumcomm.com
Phone: 701-367-5294
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