The Biden administration has scrapped a Department of Interior opinion under former President Donald Trump that attempted to strip mineral rights under the original Missouri River riverbed from a North Dakota tribal nation.
The memorandum posted Friday by the U.S. Department of Interior withdraws a May 2020 opinion concluding that the state is legal owner of submerged lands beneath the river where it flows through the Fort Berthold Reservation. That memo rolled back an Obama administration favoring the Mandan, Hidatsa and Arikara Nation, which then filed two federal lawsuits opposing the decision.
Interior officials said Monday in a statement that the Trump administration ruling overturned decades of existing precedent and the reversal will allow the agency to review the matter and ensure it is upholding its “trust and treaty obligations in accordance with the law.”
Three Affiliated Tribes Chairman Mark Fox said in a statement that the previous ruling was a “false” opinion and called on state officials to “stand down on their efforts to take for themselves that which has for centuries belonged to our people.”
“Rest assured, the MHA Nation will continue to fight to protect our land, our property rights, our sovereignty and our way of life,” Fox said.
At stake is an estimated $100 million in unpaid royalties and future payments certain to come from oil drilling beneath the river, which was dammed by the federal government in the 1950s. That flooded more than a tenth of the 1,500-square-mile reservation to create Lake Sakakawea.
The state has argued it assumed ownership of the riverbed when North Dakota became a state in 1889, citing cases where the U.S. Supreme Court has held that submerged lands were not reserved by the federal government. The Three Affiliated Tribes base their premise on three previous federal opinions dating back to 1936 that confirm their ownership of the Missouri River riverbed.
North Dakota Attorney General Wayne Stenehjem, who wrote a letter to the Interior Department in October 2017 asking to withdraw or suspend the Obama administration opinion, referred all questions to a state land board. Gov. Doug Burgum, a member of the land board, declined to talk about the new memo because he doesn’t comment on issues where there’s pending litigation.
U.S. District Judge Amy Berman Jackson indicated in an order Monday that the Three Affiliated Tribes’ lawsuit will be declared moot unless the tribes and Interior Department file valid objections by April 2. The second suit is a civil complaint seeking damages.
Attorneys representing the tribes in federal court did not immediately respond to email requests for comments on whether they planned to move forward with the suits.