Next week voters from the Three Affiliated Tribes in North Dakota will choose a new chairman.

And to complicate the choices, one of the candidates, a former chairman, is a party to a new lawsuit against an oil company.

Allottees, or landowners, and former chairman Tex Hall announced Friday that they will be suing the company formerly known as Tesoro for trespassing on 64 acres of the allotment lands, according to the Bismarck Tribune. The pipeline also passes through another 26 acres of tribal lands. The oil company’s easement expired in 2013 and they have operating since without the approval of Bureau of Indian Affairs and landowners. Tribal lands are operated by the tribe. Allotment lands that belong to the landowners and are administered by the Bureau of Indian Affairs.

Hall argues that the oil company, also known as Andeavor and merged with Ohio-based Marathon Petroleum Corp. on Oct. 1, did not “negotiate in good faith” with the landowners. He said the conversations with the oil company didn’t work out. The company has worked with the tribe in these negotiations. Hall said the tribe settled with the company for $54 million while the 450 allottees affected were offered $850 per acre.

The complaint says the landowners want a jury trial, compensation for the trespass, a cease-and-desist order, and $128 million in a constructive trust for allottees and plaintiffs involved, according to the Bismarck Tribune.

Neither the current Chairman Mark Fox nor Marathon Petroleum responded to Indian Country Today’s requests for a statement. Marathon said as a practice it does not comment on litigation.

This legal action comes days before voters go to the polls to stick with their current leaders or to return to previous leadership. Tribal voters have a lot to consider: Tribal voting rights, Constitution reform, the separation of powers between branches of government, and freedom of information issues.

HOW DO TRIBAL CITIZENS GET INFORMATION?

Danielle Freeman relies on social media and family members who live on the reservation for information on the chairman election for the Mandan, Hidatsa and Arikara Nation in North Dakota. She does homecare for her stepdad who’s health isn’t well in Montana.

“It’s really hard to find out anything. The websites are usually down or under construction. Anybody you call, they transfer you to somebody,” she said in a phone interview at the end of September.

Freeman say she has heard about a new rehabilitation center in Bismarck fostered by incumbent Mark Fox, “I don’t really know him. A lot of the things that he said hasn’t been done.”

Overall, Freeman says there’s a sense of disconnection to her tribe other than correspondence about her per-cap disbursement and a letter reminding her to vote.

DIFFICULT TO VOTE, NON-RESIDENT CAN’T VOTE

Freeman is like many of the tribal citizens who live away from her home and can’t travel back to vote because of family and work responsibilities. Years ago she tried arranging a caravan for her and others who lived off the reservation, but that didn’t work out.

Absentee voting isn’t an option either. It’s not allowed. It was an option before 1986, but not anymore. But in 1986, the tribal council adjusted an amendment to their constitution requiring all eligible nonresident, or off-the-reservation, voters to return to the reservation to vote. The only voters who can request an absentee ballot must be in the military, absent on election day due to work-related travel, hospitalized, attending a college or university, or can prove an “extreme physical disability.”

Freeman said it’s easier for those who live in state but off the reservation. But it still costs money and taking time off from jobs or school. She couldn’t make the drive from Montana back to the polling sites on Fort Berthold for the primary election and she won’t be able to make the general election either.

“I can’t vote this year. It’s not a possibility,” said Freeman who couldn’t vote in the 2014 election either. “What do I do?”

Mike Stevens, records manager of the tribe, doesn’t know why this change was made in the constitution in 1986. He only knew that a change in the constitution requires a certain percentage of eligible voters and such a change takes years for the Secretary at the Department of Interior to act on it.

Since 2015, the Fort Berthold Legacy Vision, an ad hoc organization of tribal citizens, has been fighting to reinstate non-resident tribal voters for tribal elections.

Residence is determined by the voter’s physical residence at the time of the election and must be within one of the six districts on the reservation.

The grass-roots organization said in a news release that this affects more than 75 percent of those tribally-enrolled members who live off the reservation.

“This ‘return to the Reservation to vote’ requirement clearly violates the substantive and procedural due process rights of the nonresident tribal voters who are subject to this tribal election ordinance,” the organization said.

In 2017 Ray Cross, a member of the legacy vision group, wrote an essay on Facebook about power and how tribal citizens should look at their 82-year-old constitution, especially when it concerns voting rights.

The tribal constitution a legal document created by the Solicitor’s Office of John Collier, Commissioner of Indian Affairs, that was “literally handed to our tribal people” modeled after “relics of 19th century federal Indian policy, institutional biases and surrounding non-Indian indifference and sometimes out right hostilely,” he said.

Before 1986, amendment changes to voting were made in 1952 due to the Bureau of Indian Affairs’ Indian Relocation Program. A program that encouraged Native Americans to move to urban cities promising jobs for them and as part of the Indian termination era.

Cross writes that this voting change happened “at the recommendation of the BIA, to authorize tribal relocatees, who now resided off reservation, to continue to vote in all tribal election by absentee ballot.” This change, he said, wasn’t noted in the constitution. But the 1986 change for non-residents was documented.

“However, this odd amendment doesn’t express any particular theory or value of democratic governance except to seize power and control for a privileged minority of tribal members who, for whatever personal reasons, have chosen to reside on reservation,” he wrote. “Therefore, this amendment should be, and hopefully will be, soon repealed from the tribal constitution.”

Tribal attorney Caleb Dog Eagle said he didn’t know the history and couldn’t comment further.

WHO ARE THE CANDIDATES?

Supporters of the incumbent Chairman Fox put up a Facebook campaign page and his website around the beginning of October, approximately two weeks after the tribal primary election, and more than a month before the general election.

In the primary election, Fox earned 42 percent of the 2,281 votes in September with Hall winning 20 percent of the votes. Scott Satermo came in third with 13 percent. The tribe of 16,124 tribally-enrolled members elected the final two candidates in the primary election on Sept. 18.

Fox will run against the former chairman Tex Hall for the chairman post, the nation’s highest executive position. The tribal enrollment office said a projected 10,795 voters are will vote in the tribal general election.

These candidates are not new to the election game and some say they already had their chance to make a change.

That mindset can make people feel “stuck” and decide not to vote, but Kandi White, MHA tribal citizen, encourages people to do their research and look at the histories of candidates.

“I understand people who choose not to vote because they feel like they are perpetuating a broken system. However, an old friend of mine always used to say, ‘If you’re not at the table, you’re on the menu.’” she said. “Democracy has been bastardized by colonization. There’s a lot of abuse of power and we’ve seen it in tribal elections and federal and state elections. What do we do? Do we turn the cheek? Look way and hope it gets better?”

She chooses to engage in the tribal election and is making a six-hour drive to New Town from Billings, Montana.

White, who has been fighting for environmental justice for years, says environmental issue gets a lot of “negative attention” depending on what state you’re from, and for North Dakota being an oil-dependent economy, it’s not high on the list during election.

“Right now it’s a if you can’t beat them join them attitude,” she said. “We have to get past that. It’s not true. That’s what we’ve been told. We’re stronger than that. We have so much more opportunity than what’s being told to us. We don’t have to kill our planet, poison our water and make ourselves sick because what someone else tells us.”

In the 2014 tribal election, Fox beat Hall in the primaries. Fox went against Damon Williams, a tribal attorney, and won.

Fox is seeking his second term, while Hall seeks a fourth. There is no regulation for how many terms a tribal citizen can hold the chairman position.

When it comes to voting for one of them in November, tribal citizen Steve Kelly said, “They’ve been around a long time. They both smart guys. Both well-spoken. I’m not really sure what the difference between the two of them is.” Kelly lives on and is from the Fort Berthold Reservation where the Missouri River runs through 988,000-acre reservation.

Some say on social media that Fox won because he’s already in office so people know him. Others say that Hall won because he’s a familiar face, too.

In September you couldn’t find much about Fox unless you lived in New Town, North Dakota, or attended the outreach meetings. No Facebook page or campaign website. His supporters published both around the beginning of October.

If you don’t live on or are from the Fort Berthold Reservation, or follow a few of the community’s Facebook groups, it’s difficult to learn much about Fox. But his name appears on almost every flyer on the MHA Nation – Bismarck Satellite Office Facebook page. The flyers are usually labeled with his name “Chairman Fox” followed by one of the many community projects, such as a back-to-school picnic, back-to-school gift card giveaway, an annual feed, a beautification project, powwows or a shoe carnival. It appears that the flyers serve as the campaign because the people know who he is and what he has done. Just three days before the primary election, the chairman had an outreach meeting at Ramkota Hotel in Bismarck, North Dakota. Those who attended received door prizes such as bikes, Keurig’s, flat-screen TVs, mini refrigerators and more.

In a YouTube video done by Buffalo’s Fire, Fox, who is an attorney, said he wants to continue moving forward. “Over the last four years, we’ve had significant improvements in things from government reform, financial restructure, and creation of benefits that reach out to our people.”

Documents handed out at the Sept. 15 outreach meeting listed completed infractures, such as the expansion of the 4 Bears Casino and Lodge, the Energy complex and building, the law enforcement center and court house, 4 Bears Water Park and Beach, a new drug treatment center, and the road construction. Next to the completion list is the in-progress list.

Fox does recognize there’s room for improvement. He said on the video, “there’s always more to do. There’s always more things that can get done,” he said referring to health-related needs, assisted-living housing, and housing for community members who don’t have a home.

At the top of Fox’s list, the tribe’s former tax director, is transparency with tribal citizens, especially with documenting and reporting the tribe’s finances.

According to a 2014 Mother Jones story, Fox was “promising to increase transparency for oil revenues and tighten environmental regulations on the industry,” and he promises the same transparency during this election.

“Our constituents, as members of our tribe have a right to understand and know what is going on with our tribe and that requires a number of things,” he said. “I feel very good that our council is now in support of showing our financials, showing our audit reports, and now we begin the process again of pushing that out to our membership. Transparency means our people have an ability to understand what happens during our governmental process, our council meetings so one of the things we have done is have radio broadcast live, online broadcast so people don’t have to sit and wonder at home or wait outside to come to a council chambers.”

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Hall comes to the race with a lot of experience. He worked in tribal government for 22 years. The Tribal Missouri River and Badlands Protection Act passed during his last reign as chairman. He has a master’s degree in education administration and worked for 13 years as a school principal and superintendent. He was elected chairman in 1998 and 2002. He ran for chairman in the 2014 election and came in fourth place. Hall saw the took advantage of the Bakken oil boom and started his oilfield company, Manheshu Energy, in 2007. The family-managed company offers trucking and transportation services and operates oil rigs. In the last election, his business deals were investigated after murder charges emerged against a James Hendrickson. He testified for the prosecution in that trial.

He is also the former president of the National Congress of American Indians and currently focusing his efforts on campaigning. He also founded the Fort Berthold Allottee Land and Mineral Owners Association in February as a way to advocate for allottee rights in this five-year trespass affecting 450 landowners.

Tribal citizen Lisa DeVille, president of the Fort Berthold Protectors of Water and Earth Rights, a grass-roots environmental organization, said she’s not surprised the last race came down to these two candidates, especially when oil plays a part.

“The oil and gas producing segments revenue played a big part in their progress. My people like and need the money and they know this. We all have seen what they both have to offer, it’s up to the people of MHA to decide,” DeVille wrote in an email. “They both have decade of experience in tribal government, but what’s changed? We’re still struggling to meet the basic needs of our people. Progress is not passing out handfuls of money to people. We need real solutions to real problems.”

Big oil, land and water have been hot-topics issues for the nation since they found the Bakken formation on their lands. That is still part of the conversation and both candidates have similar stances on big oil, but different approaches.

During the 2014 election, Hall preached “Reform, Rebuild & Share the Wealth.” Now he focuses on the 3 R’s: reform, redistribute and reinvest. In a videoproduced by Buffalo’s Fire, an independent digital news site, he calls out the current administration’s “runaway spending” and says he will make constitutional reform at the top of the list.

At the Freedom of Information Symposium held on Indigenous People’s Day, Hall talked about his disappointment in the tribal newspaper because the opening of new buildings take priority over the current election.

“Maybe it’s because our press is not free. You can’t get information in there,” said Hall. “When we read the paper, we hoping that that what we read is truthful, it’s honest, and it’s about the current issues before the membership.”

FREEDOM OF INFORMATION

People on the MHA Tribal Politics Facebook page often complain about being thrown from department to department when they’re trying to ask questions regarding community issues or clarifying information. They can’t get any information.

The freedom to access to information. Accessing that information so local journalists can inform the public. The freedom of information to hold the tribal government accountable.

This fight for information is tied to reforming their 1934 Constitution as echoed at the Freedom of Information Symposium on Oct. 8, where a chairman debate was scheduled. It was cancelled because Fox said he would not attend. Hall showed.

Another chairman debate was planned for Oct. 18, hosted by DeVille’s organization. It got cancelled too. Both candidates would not attend.

There has not been a general election candidate forum or debate between Hall and Fox.

“Some of the issues we have today are around that leadership and how that leadership has been marginalized and devalued through governmental policy. Now, we’re at a time where we’re about to contemplate those ideas around constitutional reform,” said Jasper Young Bear. “As we begin this idea of constitutional reform, one of the the things we’ve been talking about is the freedom of information, one of the parts of journalistic freedom that needs to be addressed so our people can have a level of transparency for the upcoming four years with this election.”

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Indian Country Today will stream a live coast-to-coast newscast on election day partnering with FNX / First Nations Experience and Native Voice One. The newscast will begin at 6 p.m. Pacific / 9 p.m. Eastern. Hashtag: #NativeElectionNight.

Jourdan Bennett-Begaye, Diné, is a reporter/producer for Indian Country Today in Washington, D.C. Follow her on Twitter: @jourdanbb. Email:jbennett-begaye@indiancountrytoday.com