May 16, 2002
N.D. High Court Rules on Indian Land
By DALE WETZEL, Associated Press Writer
BISMARCK, N.D. (AP) - In a case involving property rights and the power of tribal governments, the state Supreme Court ruled that a county water board may force an Indian tribe to sell land for a dam to control flooding.
The decision Tuesday sets a national precedent in some circumstances when a state or local government wants to purchase Indian land outside the tribal reservation, attorneys said.
The case has drawn attention from state, county and city officials, who said it presented a threat to their ability to acquire land for public projects.
The board wants 1.43 acres of land in Cass County's Maple River valley in east-central North Dakota as part of a dam project. The Turtle Mountain Band of Chippewa bought the land in July 2000 and say the land includes some Chippewa burial grounds.
The Cass County Joint Water Resource District contended the tribe could be forced to sell the land because the property was not part of the tribe's reservation or being held in federal trust on the tribe's behalf.
The state Supreme Court's unanimous ruling, written by Justice William Neumann, said the water board has jurisdiction over the land itself, and thus has authority to compel the tribe to sell it.
"Under these circumstances, the state may exercise territorial jurisdiction over the land ... and the tribe's sovereign immunity is not implicated," Neumann wrote.
Tribal lawyers contended the water board, or any state or local government agency, cannot seize property owned by a tribal government unless the tribe agrees.
Jerilyn DeCoteau, an attorney for the tribe, called the ruling "weak reasoning" and said the justices wrongly relied on decisions in other courts that involved tax disputes and arguments between states.
"That doesn't work, because the (U.S.) Supreme Court has made clear that state sovereign immunity and tribal sovereign immunity are not the same thing," DeCoteau said.
She said she is uncertain whether the tribe would appeal to the U.S. Supreme Court (news - web sites). Calls to the tribe's administrative offices were not returned.
Indian tribal land purchases outside reservation boundaries are becoming more common, and the decision could influence land disputes across the country, said Charles Carvell, an assistant attorney general.
"You're going to have more issues about whether or not tribes can assert their sovereignty off the reservation," Carvell said. "It's going to be a case that will have some relevance."
The Supreme Court's decision returns the case to a lower court, overturning a ruling that the state lacked jurisdiction over the case.
January 29, 2002
North Dakota Supreme Court to decide Indian property rights dispute
DALE WETZEL, Associated Press Writer
BISMARCK, N.D. (AP) --
A patch of land that a farmer sold to a Chippewa Indian tribe in return for blankets and beads is the focus of a legal struggle over property rights and the power of North Dakota's local, state and tribal governments.
The state Supreme Court on Wednesday is to hear the dispute about whether a county water board can force the Turtle Mountain Band of Chippewa tribe to sell the property.
The board wants the 1.43 acres of land, in Cass County's Maple River valley in east-central North Dakota, as part of a dam project. The dam would hold water away from the river during heavy rains or spring runoff.
Some lawyers in the case say that if the tribe prevails, opponents of any dam, street or sewer line could stop construction by enlisting an Indian tribe to buy land needed for the project.
"This is a case which dramatically, and directly, affects the sovereignty of the state of North Dakota," said Charles Carvell, an assistant attorney general.
Roger Shea, a farmer from rural Enderlin whose family had owned the land for almost a century, sold the 1.43 acres to the tribe in July 2000. He accepted Indian blankets and beads as compensation.
Shea said he sold the land to "stop the dam ... stop it dead." He and some neighboring property owners believe the project would flood their own land.
The Cass County water board offered to buy the land for $500. When its offer was refused, the board sued to condemn the property, a procedure that can compel a landowner to sell.
Supporters of the dam say it would provide flood-control benefits worth $4.3 million annually. It would bolster flood protection on almost 8,000 acres.
The state of North Dakota, as well as associations representing city and county governments, have filed briefs in the case. They want the Supreme Court to overturn a decision by East Central District Judge Georgia Dawson, who ruled that North Dakota state courts do not have jurisdiction over condemnation lawsuits filed against Indian tribes.
"Taken to its logical conclusion, the position of the (Turtle Mountain Band of Chippewa) would effectively mean that any public project could be held hostage," said Steven McCullough, a lawyer for the Cass County Joint Water Resource District.
Carvell said Dawson's decision would be a loss of state control over its own territory. "It is just as though a small part of the state of North Dakota had been removed from the map," he wrote in a court filing.
Tribal lawyers counter that the water board, or any state or local government agency, cannot seize property owned by a tribal government unless the tribe agrees.
The land in question includes Chippewa burial grounds, says one of the tribe's attorneys, Jerilyn DeCoteau of Boulder, Colo. The tribe's opposition to the land seizure "is to protect its cultural resources," she said in a court filing.
"The tribe is not about the business of blocking public projects," DeCoteau said. "The tribe has a legitimate governmental interest in this land, upon which its ancestors roamed, took sustenance, died, and where they will remain for eternity."
DeCoteau, who is director of an Indian law clinic at the University of Colorado's law school, said the case could have national implications.
"It raises questions about the tribe's sovereign immunity, and that is obviously a question of importance to tribes across the nation," she said.
The Three Affiliated Tribes, which has a reservation in western North Dakota, has filed a court brief supporting the Turtle Mountain Band.
Dawson's own ruling suggested that she believes the law's sovereign immunity protection for Indian tribal governments goes too far.
"If tribal immunity bars the condemnation proceeding, the common sense result is that a non-Indian could convey real property to an Indian tribe, not even located in the state of North Dakota, for purposes of stalling any ... public improvement project," Dawson wrote.
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On the Net:
North Dakota Supreme Court, www.court.state.nd.us