BISMARCK, ND (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 Jan. 30 was 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, CO. 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.