A Win for North Dakota’s Three Affiliated Tribes, A Loss for Leadership in North Dakota

Imagine your family had owned a pristine fishing lake in northern Minnesota for generations. Then in the 1940s, the township — using dubious legal maneuvers — claimed the property for needed economic development.

Your grandfather tried for years to get the lake back but no one would listen. Succeeding mayors and their friends used the lake for their enjoyment; after enough years passed, no one really questioned the arrangement. No one even remembered your family had once owned the lake.

It became a painful part of your family story. Yet, after many years, a court unexpectedly ruled in your family’s favor. You were on the verge of reclaiming this beautiful lake, but the powers-that-be still pushed back with a startling demand:

“For years, this area has been used by many of us for hunting, fishing and other recreational activities,” they said. “Is there a plan to ensure that we maintain the access we have enjoyed in the past, free of charge?”

You are speechless. You think to yourself: “How can someone who cheated my family out of our property think they still have a right to use it?”

It sounds kind of silly. But this is pretty much the story of what has happened to the Three Affiliated Tribes in North Dakota. In the 1940s, the federal government seized parts of their reservation for a flood control project. The result was the Garrison Dam project. It created a large reservoir, flooding reservation lands to protect other, predominantly white, cities downstream. A law said the federal government would return whatever land it did not need for flood control to the tribes.

Now in 2016, the federal government is getting around to returning the unused land.

It seems like a no-brainer, but some North Dakota leaders are pushing back. They seem to have no empathy for what the Three Affiliated Tribes have suffered — or an understanding of the law.

Garrison Dam (Flickr account, North Dakota National Guard)

Mending Historic Injustice

Let’s turn to the story of the Three Affiliated Tribes — the Mandan, Hidatsa, and Arikara (MHA) — who live on the Fort Berthold Reservation in western North Dakota.

I learned about this story from a LinkedIn Post titled: Another Broken Promise Addressed with the Return of 25,000 Acres to the MHA Nation in North Dakota. It was written by Kevin Washburn, Regents Professor of Law at the University of New Mexico, who served as Assistant Secretary of the Interior for Indian Affairs from late 2012 through 2015.

(Disclosure: Washburn and I were friends when he was a law professor at the University of Minnesota prior to his work with Indian Affairs.)

Washburn writes:

In the late 1940s, the federal government took more than 150,000 acres from the Indian reservation of the Three Affiliated Tribes of Fort Berthold to build the Garrison Dam and create the lake behind it, known today as Lake Sakakawea….

In subsequent legislation, Congress promised to restore at least the small portion of the land that was ultimately determined not to be needed for this important flood control project.

On Tuesday, the Army Corps of Engineers announced that it would return roughly 25,000 acres, placed in trust for the Three Affiliated Tribes. The announcement included the following statement:

“The return of these lands is an important step toward mending a historic injustice,” said Mark Fox, chairman of the Three Affiliated Tribes of the Fort Berthold Reservation. “Half of our adult men were fighting for their country and their homes in World War II when the federal government began making plans to take our lands for the Garrison Dam. The flood caused by the Dam displaced 90 percent of our people from their homes. It literally destroyed our heartland. Our people have been fighting to have the surplus lands returned to the Nation for years. I am grateful that this goal has been accomplished, and the hard work of so many of our leaders has finally paid off.”

(Click here for a map showing the impact the dam had on the reservation.)

North Dakota Leaders Push Back

Sen. John Hoeven, ND (Wikimedia Commons)

Fox’s statement is eloquent and compelling, yet returning the land was not without its hurdles. Washburn writes that as the federal government was trying to live up to its promise, North Dakota Governor Jack Dalrymple and the Congressional delegation “tried to block the effort.”

The article quotes from a  transcript of a 2015 hearing of the U.S. Senate Committee on Indian Affairs, with an exchange between Washburn and North Dakota Sen. John Hoeven.

Hoeven raises concerns about maintaining the rights of non-Native people to continue to use the land. (See page 36.)

HOEVEN: … In 2007, North Dakota’s entire delegation went to the Corps and Interior laying out several of our concerns. We wanted to make sure several issues raised by the local people were addressed before any transfer occurred. One of the primary concerns raised back then was the potential that public access to Lake Sakakawea would be reduced. For years, this area has been used by many North Dakotans and many others from on and off the reservation for hunting, fishing and other recreational activities. Under this transfer, there is concern from cabin owners, hunters, fishers, and others that access, as far as their access to the lake or areas around the lake, concern that that access could be restricted. …

Hoeven wanted public hearings held.

Washburn replies.

WASHBURN: Senator Hoeven, I guess what we would say is we are following the law. The law that Congress enacted says that the lands that were not needed by the Corps for the flood control project must be returned to the tribe. It has been hard to determine, it has taken decades to determine actually what did the Corps need. But now that that need has been determined, it is just another broken promise to the tribes until we return the land to them, as we promised we would in that congressional statute.

I understand why it would be frustrating for non-Native North Dakotans to lose their free access to the Lake. It’s something that they had enjoyed for a long time. They most likely don’t know the history of how the land was taken from the Three Affiliated Tribes.

That is where leadership comes in — explaining the history and trying to reduce community tensions. From his questioning, Hoeven seems to see only the perspective of non-Native people and speak in a way that would only escalate tensions.

At the hearing, Washburn said he understood from the tribe that it wanted the land for tourism and economic development. So the tribe  wants people to come to the lake. And they need a way to make money.

Yet Hoeven doesn’t want the tribe to be able to charge for the use of its own land.

Here is a media statement Hoeven issued weeks ago on this issue. He wants the federal government to guarantee that non-Native people can continue to access the land “without charges or fees” and threatens legislative intervention. It reads in part:

“We have made it clear to both the Corps and the Interior Department that they need to address the access concerns of local stakeholders, and that if they don’t, we will pursue legislation, either through the authorization or appropriations process, to compel them to do so. Specifically, we must have assurances that North Dakota citizens, including landowners who currently have lake access, will continue to have public access to the lake without charges or fees if the land is transferred.

His comments seem only to serve to build public resentment against the Three Affiliated Tribes; he asserts rights that don’t exist instead of promoting understanding and healing.

If this was Hoeven’s family land — land that had been taken by the government in the 1940s and now returned — would he be pushing so hard for continued free public access?

Where is the empathy for the Three Affiliated Tribes, and other Native peoples?

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