Abstract

The 1949 congressional taking of the Fort Berthold Indian Reservation occurred against the backdrop of distinctive property and compensatory doctrines that apply only to Native-American peoples and their lands. Over eighty percent of the members of the Three Affiliated Tribes, some 325 families, were removed to make way for the Garrison dam and reservoir, which were required for the massive water development project known as the Pick-Sloan Plan. Those Indian peoples were relocated from their historic villages along the Missouri River to the wind-swept bench lands of their treaty-established reservation. This taking of Indian lands disrupted the entire cultural and economic life of the Mandan, Hidatsa, and Arikara peoples 

The Fort Berthold taking, and its devastating aftermath for the Three Affiliated Tribes, illustrates the need for a modem Indian takings doctrine that restrains congressional plenary power over Indian lands so as to help preserve the remaining Indian Country as a viable homeland for the Indian peoples. This Article criticizes the failure of those earlier "sovereign bargains," or Indian treaties, to effectively preserve Indian Country as a homeland for the Indian peoples. It concludes by sketching the doctrinal outline and principled application of a modem Indian takings doctrine within the context of the Three Affiliated Tribes' forty-three year long struggle for just compensation for the 1949 taking of the Fort Berthold Indian Reservation.

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