Opinion: Stagnant Bureau of Indian Affairs enables taxation on the Fort Berthold Indian Reservation

On March 13,  I sent a letter to the Bureau of Indian Affairs (BIA) Great Plains Regional Director, Tim LaPointe, regarding the State of North Dakota’s taxation of Allottee lands on the Fort Berthold Indian Reservation. To date, I have not received a response. But recently, I was told LaPointe is no longer the regional director. 

In my letter, I wrote: “Taxes paid by oil and gas producers to the State of North Dakota for oil and gas production and extraction on allottee tracts is a matter of settled law.” After a review of existing treaty and laws concerning allottee owned lands specific to Dakota Territory, I would now amend my statement to include “in certain jurisdictions.”

Here is why. 

The Enabling Act, Feb. 22, 1889

This act admitted North Dakota into the Union. It has clear and concise language which states in part, “That the people inhabiting the proposed states do agree and declare that they forever disclaim all right and title… to all lands lying within said limits owned or held by any Indian or Indian tribes; and…, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States; that no taxes shall be imposed by the states on lands or property therein belonging to or which may hereafter be purchased by the United States or reserved for its use.

What it basically says is that as a condition of being admitted into the United States of America, the State of North Dakota will not impose taxes on property or lands belonging to the United States, including those held for the benefit of Indian people. It also states that should an individual Indian or Tribe acquire lands that had lost its tax-exempt status, those lands can be and will be taxed the same as any other within the State’s jurisdiction. That is fair enough.

The express terms of the Enabling Act were incorporated into the North Dakota State Constitution in Article XIII, Section 3, in which North Dakota “accepted” the grants of land given to form the State, from the United States of America, “under the conditions and limitations therein mentioned…”

The Dawes Act, Feb. 8, 1887, Section 4

“The fees to which the officers of such local land-office would have been entitled had such lands been entered under the general laws for the disposition of the public lands shall be paid to them, from any moneys in the Treasury of the United States not otherwise appropriated, upon a statement of an account in their behalf for such fees by the Commissioner of the General Land Office, and a certification of such account to the Secretary of the Treasury by the Secretary of the Interior.”  

In other words, the federal government is able to issue a payment in lieu of taxes from the United States to the State of North Dakota, in exchange for services on lands which are exempt from taxation. 

In fact, on the Wednesday, April 17^t episode of KFYR TV’s Country Morning Today news program, it was reported that the State of North Dakota already receives an approximate $2 million annual payment from the federal government in lieu of taxes, PILT, in exchange for services on North Dakota based federal lands.

I am not aware that the State of North Dakota performs any services on Fort Berthold Reservation allottee lands at this time, other than a project in which the Three Affiliated Tribes’ government gave up sovereignty and spit on our treaty by letting the State Game and Fish turn out and “co-manage” sheep on our lands without any input from any landowner.

 It makes me wonder if the project had BIA approval since it almost exclusively involved allottee owned lands.

The Indian Reorganization Act, June 18, 1934, Section 5

“Title to any lands or rights acquired pursuant to this Act shall be taken in the name of the United States in trust for the Indian tribe or Individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation.” It doesn’t get any simpler and clearer than that. 

Currently, on Fort Berthold, governmental services provided to allottee lands are the sole responsibility of the Bureau of Indian Affairs, who in-turn have been contracting those service-based programs to the Tribe through Public Law 93-638, the Indian Self-Determination and Education Assistance Act.

But there is a problem.

In a leaked January 19 letter that was given to me by an old, crafty-coyote former tribal official and which appears to be authentic; the Tribe has been placed on Level 1 sanctions because the Tribe has failed to submit a response to the Audit Findings for fiscal year 2018 and 2019. The Tribe also failed to meet the statutory and regulatory requirements for annual submission of Single Audit reports.

According to the records of the Federal Audit Clearinghouse and the Division of Internal Evaluation and Assessment, the Tribe has not submitted a single audit report for fiscal years 2020, 2021, 2022 and 2023. Hopefully, the Tribe has rectified the situation since then. For more information, please visit Red Owl Group.

In the meantime, the Bureau of Indian Affairs wastes our federal tax dollars pushing its own priorities and defending its own positions. This contradicts its trust responsibility to Indian people and violates its fiduciary duty by facilitating the theft of property and resources from the individual Indians whom they are supposedly entrusted by Congress to look out for. 

Not only are allottees lands being illegally taxed on Fort Berthold, but BIA’s hands-off approach to accountability literally translates to a non-delivery of governmental services throughout Indian Country.  Not only do our people suffer from the indifference of this antiquated agency that has long outlived its usefulness, but so does the land and animals, both wild and domestic. 

All things are connected.

Alternatives need to be discussed and enacted, from the grassroots level up to Washington, D.C., not the other way around. Doing the same thing over and over but hoping for and expecting a different result is lunacy. 

Gowitz