NEW TOWN – Indigenous landowners on the Fort Berthold Reservation are taking legal action to challenge what they say is the U.S. Department of the Interior’s failure to protect their share of indigenous-reserved water rights.

On Feb. 29, a group of indigenous landowners filed an administrative appeal to the Interior Board of Indian Appeals (IBIA). This appeal, Elmer Fredericks, et al., v. Great Plains Regional Director, Bureau of Indian Affairs, challenges the determination of the bureau’s regional director, released in a Jan. 30 letter, that the BIA has “no regulatory role to play” in protecting indigenous water rights.

The appellants are individual landowners commonly referred to as “allottees.” In the late 1800s up to the 1930s, the federal government broke up reservations to assimilate indigenous communities into Western culture. The Fort Berthold Reservation, home of the Mandan, Hidatsa, and Arikara (MHA) Nation, was divided by giving or selling large parcels of land for a token amount to non-Native settlers. Individual Native Americans were given beneficial ownership to certain parcels of land, known as allotments.

Today, 80% of the total trust acreage on the Fort Berthold Reservation is allotted land, and it is established federal law that allotments and their appurtenant Indian water rights are owned by individual Indian landowners, appellants argue.

“The denial of access and use of the allottee’s appurtenant water rights by the Mark Fox Administration’s baseless claim to all waters within the exterior boundaries is one thing, but the administration’s claim of allottee water rights coupled with a total lack of federal oversight has apparently emboldened the regime to enact a scheme to take those rights, resources and allegedly subsequently lease or sell those rights to third parties for massive profits,” said Todd Hall, one of the named allottees in the pending administrative appeal. “This is grand larceny of epic proportions. Rather than enforce the law, Bureau of Indian Affairs officials choose to aid, abet and conceal lawlessness in Indian Country. We as allottee landowners know the law, and we intend to use every legal means possible to fight for our rights and combat the government corruption that we face.”

In their Notice of Appeal and Statement of Reasons, the appellants stated they have been shut down in their efforts to use water legally tied to their lands. They accuse Tribal Chairman Mark Fox and the MHA Nation Tribal Business Council with working in lockstep with the Interior Department to create an illegitimate monopoly over all water on the reservation by labeling all unused water on the reservation as “excess water” under the exclusive marketing authority of the Tribal Business Council and its corporate arm.

The appellants say they have sought to engage their federal trustee through Interior Secretary Deb Haaland, Assistant Secretary of Indian Affairs Bryan Newland and former BIA Great Plains Regional Director Timothy LaPointe, all of whom have declined to take any action.

The appellants’ Statement of Reasons also details how indigenous allottees have incurred direct and substantial economic damages from foregone marketing opportunities and lost business relationships. In addition, many allottee landowners on the Fort Berthold Reservation are ranchers who earn their livelihood from raising cattle and horses on their lands. This basic need for water for Native Americans to survive on their lands was recognized by the U.S. Supreme Court over a century ago in its 1908 opinion in Winters v. United States, the appellants noted.

The BIA has filed a motion asking IBIA to dismiss the appeal on jurisdictional grounds, asserting that the allottees’ claims arise from an “intratribal dispute” that falls outside the purview of the

IBIA. The BIA also argued its decision declining to take action on the allottees’ request is not subject to administrative review.

The landowners filed their response brief on June 5, which challenges BIA’s characterization of its administrative appeal as a strictly tribal matter. BIA responded June 24, leaving the next move to the IBEA, which could rule on the motion to dismiss or set a hearing.

“There can be no dispute that the allotment era designed to exterminate Indian communities who stood in the way of Manifest Destiny. While the Biden Administration would claim to be far removed from these genocidal policies, its actions to systematically dismantle the federal trust responsibility and exterminate allottee water rights prove otherwise,” said Josie Chase, another named appellant in the administrative appeal.

“We will not stand down and let our federal trustee dismantle the foundations of our survival,” Chase continued. “This Administration is desperately seeking new and creative ways to invalidate their Indian beneficiaries’ legitimate concerns over the future existence of their life-essential water resources. These are the mechanisms of an authoritarian regime, not a trustee-beneficiary relationship.”