Legislature Shares Blame in Strained State and Tribal Relations

In 2013, the State of North Dakota and the Mandan Hidatsa and Arikara Nation (MHA) entered into an agreement on oil production and extraction taxes collected from oil activity on the Fort Berthold Reservation. The agreement avoided tax confusion on the industry and showed cooperation between two sovereign governments. It was my first session in the Senate. I remember the sense of celebration and unity as the agreement came together.  I recall the smiles, handshakes, and embraces shared between tribal members and Senators in our office at the back of the chamber. It truly seemed like a historic moment.

A lot has changed since that serene moment in 2013. In the final days of the 2015 session, Rep. Al Carlson and Rep. Craig Headland, along with other leaders in the majority, pushed through HB 1476. That bill lowered the oil extraction tax rate from 6.5% to 5%. According to those legislators, they had to lower the rate in exchange for eliminating their self-created “triggers.” Make no mistake; that claim is complete and utter bullshit. The MHA Nation was understandably upset at this move by the Republicans because it altered the tax rate they had jointly agreed upon only two years prior. That oil tax cut cost the state and the tribe millions of dollars. Only one of them acted to make this change. It was the North Dakota Legislature.

In a “compromise” with former Dem-NPL Senator Connie Triplett, a new trigger was added to the oil extraction tax formula in HB 1476. The new trigger would go into effect if oil prices stayed above $90 per barrel for three consecutive months. The majority was eager to sign off on this so they could quickly write letters to the editor claiming this oil tax reduction was bipartisan. I hope you click that link and notice our esteemed Rep. Craig Headland is a co-author.

January 10th 2017, in yet another unilateral move regarding oil taxes, the same Rep. Al Carlson and Rep. Craig Headland introduced HB 1166. This bill would eliminate the “compromise” trigger at $90 per barrel in the 2015 bill. I’m sure you’re as surprised by this move as I am. Again, the MHA Nation was upset. In opposition to HB 1166, the current Chairman of the MHA Nation, Mark Fox, pushed back on the agreement breach. Chairman Fox, in what has been described as a stern tone, testified:

We entered into this agreement in good faith. We expected North Dakota to abide by its obligations under the Agreement. We are sorely disappointed that North Dakota failed to do so. – Mark Fox, MHA Chairman

I ENCOURAGE YOU TO READ CHAIRMAN FOX’S FULL TESTIMONY FOUND AT THE END OF THIS ENTRY

As a result of Al Carlson, Craig Headland, and many other legislative members’ actions, the MHA has declared they may pull out of the 2013 agreement. Who could blame them? For the second time in four years, the legislature has altered provisions of an agreement without consulting and compromising with their partner. In all honesty, if the MHA Nation were to withdraw from the 2013 agreement and cause dual taxation on the oil industry, the people to blame are members in the majority of the North Dakota Legislature. Unfortunately, I don’t think legislative leadership gives a damn.

The strained relationship between the state and our Native American neighbors isn’t just about oil taxes. In 2012, Heidi Heitkamp became our U.S. Senator by a few thousand votes. Many attribute that win to the strong support she had from North Dakota’s Native Americans. As a direct result of her victory, Republican legislators changed the voting laws in the following session making it harder for certain groups to vote. Their unconstitutional changes were overturned last year by a federal judge because the law created, “undue burdens for Native Americans.”

At the end of 2016, Rep. Carlson moved to eliminate the Tribal Address to the 65th Session following “security concerns” stemmed from the Dakota Access Pipeline protests taking place near the Standing Rock Sioux Tribe. The address is a tradition of government-to-government relations in our state. Members of the majority on the Legislative Management Committee were quick to follow Carlson’s lead. Instead of the formal address, leadership agreed to meet one-on-one with Tribal leaders to discuss their members’ individual needs. Following the meeting, sources inside the Capitol (who preferred not to be named) claimed to hear Rep. Al Carlson declare out loud in the great hall, “Well, I just wasted another hour and a half of my life on the Native Americans.”

If the statement is true, and I have no reason to doubt, how appalling that someone in a leadership role of the Great State of North Dakota, which has five federally recognized tribes, would say such a thing. This is a clear separation in the tone undertaken by Governor Doug Burgum. In his State of the State Address last week, Governor Burgum stated, “Learn more, and assume less.” Let’s hope that Burgum’s attitude prevails in our state’s relationship with our Native American Neighbors.

Without question the ongoing protests near Standing Rock have also heightened tensions. Some of these actions were instigated by tribal members from North Dakota. Most of it was done by out-of-state protesters. Yet, I fear people may simply lump it all together and put full blame on the Tribe. This blame may take years to overcome.

The bottom line is the actions, along with other statements and legislation, show the North Dakota Legislature shares blame in straining the state and tribal relations. The important difference is, their actions have been systematic and routine. Do not be surprised to see more of this callousness from the majority’s legislative leadership before the end of the 65th legislative session.

READ CHAIRMAN FOX’S FULL TESTIMONY BELOW

Testimony of Mark Fox on HB 1166, Chairman MHA Nation by Tyler Axness on Scribd