Before and After the Flood: Contested Mineral Rights to the Missouri Riverbed at Fort Berthold

Abstract

In the mid-2000’s, North Dakota was gripped by the frenzied boom years of Bakken shale oil production, and the Fort Berthold Reservation was at the heart of its extractive landscape. In 2017, the state of North Dakota filed a claim to the submerged land below the Missouri River within the Fort Berthold Reservation—and therefore to the mineral rights that would entitle the state to oil and gas royalties for riverbed leases. This claim was based on the Equal Footing Doctrine, a principle in United States constitutional law that all states admitted to the Union under the United States Constitution do so on the same terms as the original 13 states: which includes the sovereign ownership of the beds of navigable waterways under the public trust doctrine. MHA Nation countered with their own sovereign claim to the Missouri riverbed within the reservation boundaries. At stake in this dispute were millions of dollars in oil and gas royalties secured through leases with oil and gas companies to the riverbed minerals.
Because Fort Berthold is a federal reservation, the dispute could not be settled in state or Tribal court and went to the Department of Interior for resolution. Since 2017, the issue has been the subject of four different Solicitor Opinions that have flip-flopped in their positions on riverbed ownership. This conflict reveals the jurisdictional complexity of regulatory authority on Tribal lands through the overlap of state, federal, and Tribal claims to natural resources within the Fort Berthold Reservation.