Interior Alters Position From Previous Administration on Important Water Rights Issue

On March 19, 2021, Interior’s Principal Deputy Solicitor issued a withdrawal of the previous administration’s M-37056 Opinion. That Opinion concluded that the site at which the riverbed of the Missouri River flows through the Fort Berthold Indian Reservation in North Dakota belongs to the State of North Dakota, rather than the Three Affiliated Tribes of the Fort Berthold Reservation (the tribe refers to itself as the Mandan, Hidatsa, and Arikara Nation).

An Interior spokesperson said, “The previous administration’s M-Opinion overturned decades of existing precedent holding that the Missouri riverbed belonged to the Mandan, Hidatsa, and Arikara (MHA) Nation. 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.” 

On May 26, 2020, former Solicitor Jorjani issued the M-37056 opinion, which superseded and reversed the legal conclusions made in former Solicitor Tompkins’ January 18, 2017 opinion (M-37044), which found the riverbed belonged to the tribe.

The Jorjani Opinion has been challenged in the District Court for the District of Columbia by the tribe and the State of North Dakota has intervened. The Department has been granted a stay in this litigation to allow for review of the Jorjani Opinion.