Mandan, Hidatsa and Arikara Nation v. DOI, No. 22-5185 (D.C. Cir. 2023)
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This is an appeal from the district court’s denial of the State of North Dakota’s supplemental motion to intervene in the lawsuit against the Department of the Interior brought by the Mandan, Hidatsa and Arikara Nation, recognized as the Three Affiliated Tribes of the Fort Berthold Indian Reservation (“Tribes”). The Tribes, joined by the Interior Department, filed oppositions to the State’s continuing as a party. In response, the State moved again to intervene with respect to the remaining Counts. This time the district court denied the State’s intervention motion. The district court explained that “there [was] no longer a live controversy before the Court on that issue.” The court explained: “At various points, the State argues that ‘an M-Opinion does not establish legal title’ and that, as a result, a dispute remains.
The DC Circuit reversed. The court explained that the Interior lacks “authority to adjudicate legal title to real property.” The Interior Department conceded as much. The action of the Bureau of Indian Affairs recording title in its records office, therefore, could not “establish legal title,” as the district court supposed. As the Interior stated in its brief, “there has been no final determination of title to the Missouri riverbed.” The action of the Bureau of Indian Affairs recording title in its records office, therefore, could not “establish legal title,” as the district court supposed. Accordingly, the court wrote that there is no doubt that the State satisfied the Rule’s requirement that the intervention motion must be timely.
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