News Analysis: By Jodi Rave

North Dakota’s oil industry needs water. Lots of it. Semi-trucks line up routinely at water depots on the Fort Berthold Reservation. Flexible water pipelines snake away from the depots. The industrial-strength hoses hence transport water to nearby hydraulically fracked wells.

A single drilling rig requires 1 to 5 million gallons of water to extract oil locked deep in shale deposits. The Three Affiliated Tribes and its engineering business partner, Bartlett and West, now monopolize the local water sales market. They sell water from the tribes federally-funded drinking water system to oil producers in the Bakken.

The problem: Water pipelines arguably cross the land of hundreds of tribal citizens of the Three Affiliated Tribes, or the Mandan, Hidatsa and Arikara Nation. In this case, tribally-enrolled citizens, brothers Gabriel, Howard and Charles Fettig, said Bartlett and West failed to seek permission to cross their land.

Gabriel Fettig and his brothers said they finally grew weary. They had too many failed attempts to address the issue with the tribe and its engineering consultant. The Fettig’s filed a federal lawsuit in June. The six defendants include: Three Affiliated Tribes Chairman Mark Fox, Bartlett and West, Ryan Waters, the tribe’s Section 17 Corp., Fort Berthold Rural Water and TAT Councilman Randy Phelan.

Twelve years ago, then-Chairman Marcus Wells Jr. provided testimony to the Senate Committee on Indian Affairs. Wells admonished the government for failing to fulfill a federal measure to complete a “reservation-wide drinking water system” on Fort Berthold.

Rural Water System

In 2007, the Fort Berthold Rural Water Supply System connected only 10 percent of homes on the reservation to the water pipeline . This was also the same year that “landmen,” oil company employees who typically seek a mineral right lease or right of way, began trotting out leases. Landmen need signatures to cross tribal or individual allotted lands.

Wells testified the tribe — in 2007 not yet flush with oil revenues — incurred costs to develop sections of the Fort Berthold Rural Water system. The Three Affiliated Tribes had to sue the Bureau of Reclamation for reimbursement under provisions in the Dakota Water Resources Act.

Federal and state agencies finally helped the tribe complete its rural water system. This time, they gave the tribe millions of dollars. This allowed the Three Affiliated Tribes to eventually sell excess water.

The tribe, the engineering firm, Waters, Phelan and Fox arguably sell hundreds of millions of gallons of Missouri River water to the oil industry. The Fettig’s suit begs these questions: How much water is being sold? Who is getting all the money? How is money being spent? Where’s the audit of water sales?

Bartlett and West appears to be running the Missouri River water show. They made an incredulous deal with the Three Affiliated Tribes’ Section 17 Corp. The engineering firm makes deals with and sells water to energy companies.

In a bizarre twist, the consultant firms also provides “all record keeping and accounting of funds” for the tribe. It also maintains “a separate checking account.” A May 2012 memorandum agreement approved by tribal resolution outlines the details. The memo initially allowed the tribe to appoint the TAT Tax Department, then led by Fox, to administer the agreement.

Unjust Enrichment

“You just simply cannot trespass on somebody’s land, then on top of it, convert it into millions of dollars a year for the Section 17 company or for Bartlett and West. They probably got new offices in Bismarck because of the water being used from Mandaree.”

tex hall, president, fort berthold allottee land and minerals association

Bartlett and West makes money off tribal resources. And they aren’t even nice about it — particularly to tribal citizens. “Many of them have told us, ‘They’re disrespectful. They’re demanding,’” said Tex Hall, president of the Fort Berthold Allottee Land and Mineral Owners Association. “And in the end, they just trespass.”

In an interview, Gabriel Fettig said neither the tribe nor Bartlett and West ever secured a lease from him or his brothers. Instead, those running the tribal Section 17 Corp. trenched a pipeline on their land, “uprooted the pristine prairie,” failed to do any weed control and “never paid us a cent.”

The tribe’s for-profit business takes “excess” water from the Fort Berthold Rural Water system and sells it for upwards of $1 per barrel to oil companies fracking a well. The Fettigs’ lawsuit alleges the defendants routinely engage in “unjust enrichment,” meaning the Three Affiliated Tribes and Bartlett and West are likely making millions of dollars at the expense of tribal citizens.

Fettig said his family had previously negotiated with Bartlett and West for a water tap for cattle. The company failed to deliver. Instead, the engineering firm put down water hoses and trenched areas of Fettig land for a 12-inch pipeline.

Bartlett and West came back almost two years later. Now, they wanted more. This time, the company asked to install a 16-inch water line. Gabriel Fettig said it was the turning point.

The tribe and its contractor failed to seek an easement with the Fettigs, said Hall. “They had to sue in federal court.” He estimates at least 300 other tribal landowners are in a similar situation. Landowners tell him: “There’s a flat hose across my land and I don’t know how it got there and nobody talked to me.

Next Steps

“You just simply cannot trespass on somebody’s land,” Hall said, and “then on top of it, convert it into millions of dollars a year for the Section 17 company or for Bartlett and West. They probably got new offices in Bismarck because of the water being used from Mandaree.”

Ironically, Kansas-based Bartlett and West’s company website touts a past as “pioneers in rural water.” Company values include earning “trust through doing what is right even when doing so is difficult.” And there’s this value — caring for “our clients, our community and each other.” The company’s community values apparently don’t apply to Indians.

Attorney Reed Soderstrom said a subpoena will reveal how much money the tribe has made from industry water sales. Bartlett and West employees did not return phone calls.

The Fort Berthold Rural Water system, a project largely funded by the Bureau of Reclamation, draws raw water from the Missouri River. It’s a drinking water system. Now, many complain rural water users rank second to the oil industry.

Hall said his house in Mandaree recently was without water for two to three days. The water pressure was low. When the flow returned, the house water ran murky and cloudy. “Somehow the priorities got shifted,” said Hall. “Big Oil has moved everything and the Tribal Council has followed.”

For now, Fettig hopes the family lawsuit inspires other Native landowners to take action. “I feel betrayed by the Tribal Council. They’ve made zero attempt to try and settle this.”

Jodi Rave has received news, column writing awards and recognition from the Pacific Northwest Society of Professional Journalists, Montana and Nebraska press associations, Native American Journalists Association and Columbia University. Jodi is the director of the Indigenous Media Freedom Alliance.