“I’m not gonna be around this earth that long,” MHA Nation Chairman Mark N. Fox acknowledged, “but I’ll tell you what. If it takes 100 years to resolve this… then 100 years it shall be.”
For nearly two centuries, up until recently, the federal government has affirmed the Mandan, Hidatsa and Arikara (MHA) Nation’s property rights to the Missouri River where it flows through the Fort Berthold Reservation. Yet the Trump Administration has taken action to prevent the Tribe from accessing the mineral revenue beneath the riverbed by transferring ownership from the Tribe to the State of North Dakota.
On May 26, Interior Solicitor Daniel Jorjani issued a 15-page opinion that overturned three prior Interior decisions recognizing the MHA Nation’s title to Missouri River mineral rights, including reversing a decision that has stood since 1936.
“It’s a land grab. It’s an attack on our trust resources. All for what?” asked MHA Nation Chairman Mark N. Fox, rhetorically. “For money. If there was not $100 million-plus in escrow accounts from unlawful and somewhat quasi-lawful drilling (by outside oil companies) underneath this riverbed, we wouldn’t have any problems; the state wouldn’t care.”
To understand the MHA Nation’s economic, political, cultural and spiritual ties to the Missouri River and the mineral resources beneath it requires a journey through history. Because, Chairman Fox explained, governments in power may lead you to believe that the Tribe’s relationship with the Missouri River is succinct, and that what’s currently playing out is a mere Trump Administration counter to an Obama-era opinion.
“They want to minimize the process and minimize the history of it, so that they can gain favor and the public side,” Chairman Fox told Native Business. “But that’s the furthest thing from the truth. The truth is we can go back hundreds of years — to the invasion of America, the fur trade era, and the Louisiana Purchase.”
Chairman Fox explained: “Anthropologists call us riverine Tribes to define us and to characterize what type of Indians we are. Why do they call us riverine Tribes? Because we’re so attached to the river. Everything we do is along the river.”
He added, “We know it — ethically, morally, governmentally — we know we’ve always owned the river where we’ve existed along it. It’s part of who we are. Even today, our elders, we pray for that river. We have ceremonies with it.”
Essentially, the U.S. government has honored the Tribe’s rights to the river, except when financial gain is at stake.
That goes back to the Louisiana Purchase, when the U.S. government acquired lands sweeping across fifteen present U.S. states. The Jefferson Administration sought to intercept intertribal trade that thrived on the Missouri River for thousands of years “to control our Aboriginal trade system.” To gain economic access to the lucrative trade thoroughfare, the federal government declared war against the Arikara (one of the three Tribes that make up the Mandan, Hidatsa and Arikara Nation) “to drive us away from the Missouri River,” Chairman Fox explained.
After the failed attempt to destroy the Arikara, a treaty was signed in 1825, honoring a fragment of the MHA Nation’s original land and river rights — a landbase that would be further diminished with the Fort Laramie Treaty of 1851. Still, those treaties observed Tribal rights to a segment of the Missouri River.
“At that time, you didn’t see a whole [federal] movement, like they’re doing today to say, baloney, we own that river. You know why? Because there were not hundreds of millions of dollars involved. There was no value to it economically, in their minds, at that time. ‘They can have their little reservation, everything within it, river included.’ It didn’t matter,” Chairman Fox explained.
Come the turn of the 20th Century, the MHA Nation’s territory was reduced from 13 million acres down to a million. “By 1920, we were dwindled down to less than a million acres, and half of that is actually Tribally owned or in trust,” Chairman Fox said.
Nonetheless, 10 prior federal decisions corroborate the MHA Nation’s rights to the Missouri River on Fort Berthold, and opinions since 1936 observe Tribal rights to the minerals beneath it.
The 10 cases supporting Tribal ownership are the 1866 Agreement of Fort Berthold, the 1870 Executive Order establishing the Fort Berthold Reservation, 1880 Executive Order allowing railroad construction at Fort Berthold, the 1866 reduction of MHA Nation reservation boundaries, the 1936 legal opinion by the DOI recognizing the MHA Nation’s mineral rights, the 1979 legal decision by the DOI’s Board of Land Appeals, the 1984 Fort Berthold Mineral Restoration Act, and the 2017 legal opinion by the DOI affirming the Nation’s mineral rights.
Greed of the U.S. and state governments came into play, Fox said, when oil companies were unlawfully trespassing and drilling under the Missouri River, where it flows through the Fort Berthold Reservation. The MHA Nation with John Fredericks III, Legal Counsel and MHA Nation member, sought an Interior opinion to challenge the oil companies’ trespassing and demand deeds. “We can develop ourselves, take the royalties and build more infrastructure and help improve the lives of our people,” Chairman Fox said.
But rather than confirm the Tribe’s rights, Interior sought to “strengthen” the former 2017 Interior opinion through more analysis of the Tribe’s historical ties to the Missouri River. “At the time, my lawyer John and I said, ‘We think that’s unnecessary. You just need to do your work. It’s already done. It’s established.’ But they insisted,” Chairman Fox said.
In summer 2018, Interior stayed the January 2017 Obama-era opinion, and on May 26, 2020, Interior issued a new opinion, overturning the three prior Interior decisions.
Chairman Fox continued, “They narrowed it down to: ‘Oh, you don’t really use that river. It has nothing to do with your economy.’”
“Totally false!” Chairman Fox exclaimed. Interior didn’t even wait to review the Tribe’s extensive research, performed by Mike Lawson, a nationally renowned Missouri River historian, “which is thousands of pages,” Chairman Fox said. “They hired some firm to look around, and ask a few questions to formulate their opinion, as directed by the U.S. and North Dakota government.”
At risk now is the state pressuring oil companies to release hundreds of millions in royalties from previous drilling beneath the riverbed on Tribal land. “What we’re concerned about is that the oil companies are going to be told by the state to turn in that money, based on the Interior opinion. You know what they always say: possession is nine tenths of the law,” Chairman Fox said.
If that’s the case, litigation is inevitable. “We’re going to have to file… in the U.S. Court of Claims, and probably a federal U.S. District Court, more likely,” Fox said.
Blindsiding the MHA Nation by withdrawing its property rights to the Missouri River and the minerals beneath it during the COVID-19 pandemic was intentional, Fox stated. The federal and state governments are applying the mindset of get them “when they’re at their weakest, when they’re demanding federal aid to offset their losses. Now they’re weakened, do it then. And you need to get this done, because you don’t know what’s gonna happen in November, right?”
The negative economic impact of the Tribe losing $100-$150 million is far more tremendous than $150 million against the state’s $4 billion to $5 billion budget, Fox underscored.
Not to mention, the Tribe reinvests money back into the community. “They (North Dakota) get 10 times more back in economic impact by letting us build and do what we do,” he said.
Chairman Fox is also concerned that if things escalate, and the Nation files a lawsuit, North Dakota will try to negotiate a split. “And I can’t do that. Why give up something that we know we own, that we are rightfully, legally entitled to?”
“This truly is horrifically astounding. It’s so immoral and unethical for them to try to claim this,” he continued. “When they said, we’re staying this (opinion), I said, you have other motives here. I told my attorney, they’re coming after it. They’re gonna do another opinion, and they’re going to go against us. So we better start getting ready for that. And that day came.”
But the MHA Nation has fought for centuries, and it will fight for centuries more for its economic, political, cultural and spiritual rights to the Missouri River on Fort Berthold, and the minerals beneath the riverbed.
“I’m not gonna be around this earth that long,” Fox acknowledged, “but I’ll tell you what. If it takes 100 years to resolve this, and stick to what we’ve got, then 100 years it shall be.”