Biden solicitor swings mineral rights title back to tribes

FARGO, N.D. — The interior solicitor in the Biden administration said in an opinion released Friday that the mineral rights under the original Missouri River riverbed belong to a North Dakota tribal nation.

The 68-page memorandum posted by the U.S. Department of Interior is contrary to a May 2020 Trump administration opinion concluding that the state is legal owner of submerged lands beneath the river where it flows through the Fort Berthold Reservation. The Mandan, Hidatsa and Arikara Nation had sued over that memo, which rolled back an Obama administration opinion favoring the nation, also known as the Three Affiliated Tribes.

“My decision today upholds decades of existing precedent holding that the Missouri riverbed belongs to the Mandan, Hidatsa, and Arikara (MHA) Nation,” Interior Solicitor Bob Anderson said in a statement. “Today’s action, based on extensive historical and legal review, underscores the Department’s commitment to upholding its trust and treaty obligations in accordance with the law.”

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 (3,885-square-kilometer) Fort Berthold 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 in which 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 the 1851 Treaty of Fort Laramie that confirms their ownership of the riverbed.

Tribal officials began their campaign in 2019 by taking to social media and writing op-eds asking state leaders to back the tribes’ ownership rights, much like they did in the 2019 legislative session regarding an oil and tax agreement with the tribes.

MHA Nation Chairman Mark Fox said the new opinion corrects “a grave injustice” and the tribes look forward to working with the government to protect the tribal nation’s “historic rights to the Missouri riverbed.”

This is the fourth time the Interior Department has addressed the issue since January 2017, when Solicitor Hilary Tompkins, an appointee of President Barack Obama, affirmed tribal ownership. Solicitor Daniel Jorjani, President Donald Trump’s appointee, ruled in favor of the state in 2020. Jorjani’s opinion was scrapped in March 2021, after President Joe Biden took office.

“This has been a long haul for my clients at MHA Nation,” said attorney Timothy Q. Purdon, of Minneapolis-based Robins Kaplan. “But, since I was brought in to help represent the tribe over two and a half years ago, the MHA Nation and its leadership have never wavered in their commitment to righting this wrong and protecting their people’s historical connection to the Missouri River.”

A spokesman for Republican Gov. Doug Burgum said the governor does not comment on matters still active in court.