The Biden administration scrapped a controversial Trump-era legal opinion on Monday that sought to give North Dakota control over a portion of the Missouri River on Native American land.
The withdrawal comes one week after Interior Secretary Deb Haaland, a member of the Pueblo of Laguna tribe of New Mexico, was confirmed as the first Native American Cabinet secretary in U.S. history. Haaland and President Joe Biden have vowed to uphold tribal sovereignty and reverse the Trump administration’s attacks on Indigenous cultural sites.
In May 2020, Daniel Jorjani, then the top lawyer at the Department of the Interior and a former longtime adviser to the fossil fuel moguls Charles and David Koch, issued a memo concluding that the state of North Dakota owns mineral rights beneath the portion of the Missouri River that flows through the Fort Berthold Reservation.
That opinion replaced one from 2017 in which Hilary Tompkins, the interior solicitor under President Barack Obama, determined that the Mandan, Hidatsa and Arikara Nation, also known as the Three Affiliated Tribes, had rightful ownership.
The Trump-era Jorjani opinion “overturned decades of existing precedent holding that the Missouri riverbed belonged to the Mandan, Hidatsa, and Arikara (MHA) Nation,” a spokesperson at Biden’s Interior Department said in a statement Tuesday. “Today’s action will allow us to review the matter and ensure the Interior Department is upholding its trust and treaty obligations in accordance with the law.”
The Three Affiliated Tribes filed a federal lawsuit in July 2020 challenging Jorjani’s opinion, arguing that the Trump administration was attempting to “illegally confiscate” the tribal nation’s mineral rights and had “violated both its fiduciary duty as the tribe’s trustee and its treaty obligations.”
Whereas the tribes point to legal opinions dating back to 1936 that have confirmed their ownership of submerged lands below the Missouri River, the state of North Dakota argues it assumed control at statehood in 1889.
Fossil fuel companies have begun using horizontal drilling techniques to access oil and gas resources below the river and Lake Sakakawea, a 200-mile-long reservoir created with the construction of Garrison Dam in the 1950s that permanently flooded one-quarter of the Fort Berthold Reservation and forced 90% of tribal members to relocate.
As The Associated Press reported last year, an estimated $100 billion in oil and gas royalties and future payments are waiting to be claimed, and the state has pushed for control of mineral rights on the reservation section of the river.
Mark Fox, chairman of the Mandan, Hidatsa and Arikara Nation, said in a statement Monday the nation is “pleased the federal government has chosen to follow the law” and withdraw the Jorjani opinion.
“This is the right decision,” he said. “Prior to the false Jorjani opinion, the U.S. government had consistently affirmed MHA Nation’s property rights to the minerals below the Missouri River numerous times throughout history. I call on officials of the State of North Dakota to respect and accept the Department of Interior’s rightful decision here, and to stand down on their efforts to take for themselves that which has for centuries belonged to our people.”
In a December op-ed, Fox accused the Trump administration of “playing politics with tribal sovereignty” and called on Biden to “right a historical wrong that has persisted for far too long.”
“The acknowledgment that the Missouri riverbed and the mineral rights beneath it are MHA Nation tribal lands, like so many issues of tribal sovereignty, is about justice,” he wrote. “Justice not just for our people but for every sovereign nation that has faced the consequences of the federal government’s broken promises.”
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