North Dakota

North Dakota High Court Rules on Indian Land

By Dale Wetzel, Associated Press Writer
May 16, 2002

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.

North Dakota Supreme Court to Decide Indian Property Rights Dispute

By Dale Wezel, Associated Press Writer
January 29, 2002


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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American Indians Lag Behind Whites On ACT Exam

By Blake Nicholson, Associated Press Writer
August 16, 2001

Bismarck, N.D. (AP) – High school graduates in North Dakota overall exceed the national average on the ACT college-entrance exam, but American Indian students in the state continue to struggle with the test.

Overall, the 2001 graduates who took the test either in their senior, junior or sophomore year had an average composite score of 21.4 of a possible 36, above the national average of 21.0.

White North Dakota students who took the test had an average composite score of 21.6, while American Indians had an average 17.1. Indians who did not take the college preparatory curriculum recommended by ACT had an average score of 15.8, below the typical requirement for colleges with liberal or open admissions policies.

“It’s an indication that more guidance is needed, but there are a lot of factors,” said Ken Gullette, spokesman for the Iowa City, Iowa-based ACT Inc., a nonprofit. “It could also be a need for intervention earlier, an integrated effort to guide them into college planning at an earlier age. And there are also societal factors.”

The standardized tests measure skills in English, math, reading and science. The average composite score in North Dakota has remained at 21.4 the past five years. Eighty percent of the 2001 high school graduates, or 7,388 students, took the tests.

North Dakota females did better in the English and reading categories and males did better in math and science. Males did slightly better overall than females. Those results mirrored national trends.

Average composite scores also progressively rose as the family incomes reported by test-takers increased. Students who listed annual family income of more than $100,000 had an average score 3.7 higher than those who listed family incomes under $18,000.

Poverty on reservations might be one factor for lower average ACT scores by Indian students, said Cheryl Kulas, director of the state Indian Affairs Commission and a former programs director for the state Department of Public Instruction.

Kulas said reservation schools need more guidance counselors and more consistent curriculums to deal with students who are part of a highly transient population. Culture and language differences also might put Indian students at a disadvantage, she said.

“It’s a complex set of issues,” Kulas said. “Many minority students don’t do well on ACT tests.”

The ACT test, used with a student’s grade point average, is intended to be a predictor of first-year college performance.

The eleven public schools in the North Dakota University System require undergraduate applicants to take the ACT or the SAT, the other major standardized admissions test. However, they do not require applicants to achieve a certain score, said Michel Hillman, the university system’s vice chancellor for academic affairs.

Applicants must complete a college preparatory curriculum in high school defined by the state Board of Higher Education. It differs from the curriculum recommended by ACT, Hillman said.

Many campuses have centers open to all students who may be at an academic disadvantage, he said.

“Students who come in who are underprepared really have a lower probability for being successful,” Hillman said.

Nearly one-third of test-takers listed either the University of North Dakota or North Dakota State University as their top college choice.

A career in the health care field was the top goal of 19 percent of the test-takers. Only 4 percent said they planned to major in education, in a state where teacher shortages are becoming common but teacher pay remains low compared to other states.

The Standing Rock Sioux Tribe banished Margaret Penn from their reservation. While Penn is 1/8 Turtle Mountain Chippewa, she was not a tribal member and she lived and worked on state land. The banishment order was served, and enforced two hours later, by both the Sioux County Sheriff and the Captain of Law Enforcement for the BIA. Penn said that, “If the tribe can banish me, they can banish anybody.” The banishment has since been vacated, but Penn has lost both her home and her job. She had been an employee of a domestic abuse counseling center and shelter which was forced to close because of her absence. U.S. District Judge Patrick A. Conmy dismissed Penn’s civil action but wrote a scathing opinion of the tribe’s actions. He wrote that, “Alice in Wonderland or the Wizard of Oz comes to mind, but the case is so bizarre that perhaps something of Kafka or Sartre would be a better analogy.” Penn is pursuing an appeal.