N.D. court ruling rescinds tribal authority

Decision paves the way for dam construction on sacred burial ground

  • Map of Maple River in North Dakota

    Diane Sylvain

In a slow, warm voice, replete with "yahs" and "oh, sures," 76-year-old farmer Roger Shea recalls the hot June day in 1988, when water engineers first paid him a visit. "They came out here and said that they were going to build it," he says. "It" was a $20 million dam on Shea's property near the small town of Enderlin in southeastern North Dakota.

"I remember saying to the engineer, 'You better get going, because you won't have my land.' And he said, 'Well, we'll take it by eminent domain.' He just laughed and said, 'We'll take it.' "

The Cass County Joint Water Resources District, backed by the state, condemned Shea's land two years ago. But Shea did his best to throw a wrench in the works. He sold one and a half acres of his 470-acre farm to the Turtle Mountain Band of the Chippewa Indian tribe. The Chippewa wanted the land because of a donut-shaped mound on the property that they say is a sacred burial site. Shea wanted to sell his land, not for money * he traded it for three wool blankets and three strings of beads * but because he believed the state's power of eminent domain would not apply to the tribe. The sale, he surmised, might stop the dam.

But two years - and two trials - after Shea's last-ditch effort, the project is still rolling along. And the fight to stop it, which has gone all the way to the North Dakota Supreme Court, has become a fight over more than just a dam. At issue is the power of states vs. the sovereignty of Indian tribes * their ability to rule their own people and land.

The debate may soon be settled in the U.S. Supreme Court. Given the staunchly conservative nature of the court, though, some say it's a dangerous time to be debating an issue so central to Native American nations.

Savior or boondoggle?

Officials at the water district, which serves Fargo and its growing, affluent suburbs, have been pushing for a flood-control dam on the Maple River for 20 years. They say floods on the Maple River cause an annual average of $4.3 million in damage to homes and property, and want to build a 70-foot tall, 1,700-foot wide earthen "dry dam" to prevent future losses.

"We'd like to get it built for the protection of people in the Red River Valley," says Tom Fischer, water district chairman.

To this end, the district has been buying or condemning the 7,000 acres that would be inundated by the dam and its floodwaters. But as Roger Shea expected, the district hit a snag when it tried to condemn the Chippewas' land. The tribe contested the taking in court, asserting that because of its status as a sovereign nation, it has the final say on tribal land. It doesn't matter that the Chippewa Reservation is 200 miles away, says Pemina Yellow Bird, a member of the North Dakota Intertribal Reinterment Committee, which seeks to preserve Indian burial sites: "It's aboriginal homeland."

In and out of court, the debate continued.

Dam opponents pointed out that the U.S. Army Corps of Engineers abandoned the dam years ago because it found the project economically infeasible. Opponents also argued that the project will do nothing to stop flooding.

"If you spit, the neighbors are gonna get flooded," says Russell Myhre, Shea's attorney. "That's how flat it is." Rather than build the dam, he suggests, the county should revise housing codes and stop building in the Maple River floodplain.

Indians say the dam would be yet another infringement on their culture. Yellow Bird says there are dozens of burial sites in the Maple River Valley, and that the county never considered alternatives to the dam.

"Native people continually have to move over for development," says Jane Martin, another member of the intertribal committee. "I want them (the dam builders) to view those burials as their own relatives."

But dam supporters say there is no evidence of burial grounds on the land. Steve McCullough, the lead attorney for the water district, says the tribe's interest is not genuine. "The tribe came in and sought to buy the land at the eleventh hour," he says. "Nobody's trying to steal Indian land."

A floodgate argument

On May 14, North Dakota State Supreme Court Justice William Neumann ruled in favor of the state, defending its authority to take the Chippewas' land on two points. First, he established that the state has jurisdiction over all land in North Dakota. Next, and more crucially, he cited the 200-year-old federal Non-Intercourse Act, originally meant to protect Indian tribes from state governments.

The act doesn't distinguish between Indian land on and off Indian reservations. Justice Neumann, however, made that distinction, and concluded that Indian land off the reservation is just like any other private property: The state has the authority to take it for the public good. He suggested that, if the state did not have jurisdiction over the land, people could block any public works project simply by selling their land to an Indian tribe.

This type of "floodgate" argument is illogical, according to John Dossett, general counsel for the National Congress of American Indians. There's no pattern of obstruction, he says, adding that the Chippewa are not trying to block the project just for the sake of blocking it. They're fighting to protect a sacred place.

"It's been the law since 1790," says Dossett. "States can't take land from Indian tribes."

Justice Neumann's decision could reverberate across Indian country, according to Jane Martin. "It's a very bad precedent - it will have serious repercussions," she says. "It cannot go unchallenged."

The Chippewa tribe has until mid-August to decide whether to appeal to the U.S. Supreme Court. Many tribal members, though, are reluctant. An unfavorable decision from the highest court in the land would be a major setback for tribes around the country, many of which own land off their reservations.

As for Roger Shea, he admits, sadly, "I was surprised we were able to hold out the way we did. I don't know what will happen now."

Jon Waldman is an intern at High Country News.

You can contact ...

  • Cass County Joint Water Resources District, 701/281-0223;
  • Jane Martin, North Dakota Intertribal Reinterment Committee, 701/477-2573.
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