"A cold wind blew across the prairie when the last buffalo fell...a death wind for my people."
-Tatanka Iyotake (Sitting Bull)
“When the buffalo went away the hearts of my people fell to the ground, and they could not lift them up again. After this nothing happened.”
-Plenty Coup (Last Crow Chief)
Separation of Church and State?
Most Americans understand that the aggressive expansion and settlement of the West, especially in the wake of the Civil War, was based upon official government pogroms against Indigenous tribes and the buffalo. The trauma of that original culture, grounded as it was in ethnic genocide and ecological mayhem, still reverberates on tribal reservations and in the oppressive politics of the livestock industry towards wildlife. And it still shocks the conscience to look back at the U.S. Supreme Court’s legal rationale for the government’s policy of genocide.
Painting by George Catlin of Plains Indian tipis around the year 1830
Supreme Court Justice Joseph Story served on the high court for over three decades, and was renowned for his Commentaries on the Constitution of the United States (1833). In that legal treatise, Story wrote about the overtly racist rationale for the Supreme Court’s seminal ruling on Indian Law a decade earlier:
“The Indians were a savage race, sunk in the depths of ignorance and heathenism… They were bound to submit to the superior genius of Europe… The Papal authority, too, was brought in aid of these great designs…”
Story is referring here to the “discovery doctrine” set forth in a Papal Bull in 1493, which he cites as being issued “for the purpose of overthrowing heathenism, and propagating the Catholic religion.” Here we see quite clearly how what we now view as racist, and ignorant, was viewed by America’s patriarchal founders as religious, and thus righteous.
That “superior genius” Justice Story boasted of included the abomination of slavery - a holocaust that lasted four centuries; genocide; the mass extinction of wildlife species in favor of factory farms; and, it has culminated in an existential threat to the future of all life on the planet. It has, in other words, placed us on the road to perdition, though in seductive vehicles. The Catholic Church has fared no better, as we’ve become painfully aware of in recent decades, and is only now beginning to atone for its sins, including the cultural genocide of border schools for Indigenous children ripped from the bosom of their families and beaten into submission, if not killed and buried in unmarked graves.
And yet this attitude of superiority still finds a place in the very idea of “American Exceptionalism,” used to justify the continuing exploitation of the Global South and its Indigenous people.
Supreme Court Justice Joseph Story
The traditional ecological knowledge and natural lifeways of those “heathen savages,” meanwhile, are now widely viewed as a true kind of “superior genius.” According to both conventional science and international consensus, it is needed more than ever in addressing that existential threat the settler culture created with its clearly inferior, hypocritical morality. Racism is not, after all, true religion. It is the opposite of religion.
Justice Story would have been well-counseled to consult his cherished Bible before denouncing an entire race of nature-based cultures: “Pride goeth before destruction, and a haughty spirit before a fall.” (Proverbs 16:18). By Story’s definition, Adam & Eve would also be considered “heathens," and of course the Old Testament is chock-full of “savagery.” Do we consider stoning promiscuous people to death the mark of a civilized culture?
So while the U.S. Constitution mandates the separation of Church and State, there is no question that the U.S. itself was founded upon the central organizing principle that European Christians had a divine right to take land from Indigenous peoples everywhere, either by slaughtering them - man, woman and child - or by enslaving them in the name of their almighty God, which became the “legal” justification for centuries of the kind of white colonial domination that is now widely recognized as a fundamental violation of human rights. And as to the consequences, we now live in a world where 80% of the remaining biodiversity is found on the 5% of the planet still in the hands of nature-based, Indigenous peoples.
America still hasn’t really even begun repairing the broken relations caused by its unconscionable past. Indeed, for many it is preferable to simply pretend that this recent history does not exist. They would even ban these inconvenient truths from the history curricula taught to our children. Can we imagine what the world’s response would’ve been if Germany had adopted such a revisionist stance in the wake of the Holocaust?
Hypocrisy, thy name is “America!” The land of the free - built on the backs of slaves. The home of the brave - including those traumatized veterans of the Civil War who slaughtered Native American women and children because gold was found in the Black Hills and Sierra Nevada, not to mention these modern-day Republicans who fear truth being taught to their children, and are terrified of gender fluidity.
Fortunately, in America doctrinal law itself is subject to reformation over time, as societal mores change, and the Supreme Court - without regard to political ideology - has been forthright in actively removing the vestiges of its own colonialist racism. Both American Indians and the American Buffalo are, against all odds, still here. As a country, we are big enough to acknowledge the sins of our past, though reluctant to address the still unresolved traumas rooted in those grave mistakes.
But even that is changing, out of necessity, and both American Indians and the American Buffalo now stand to benefit greatly from reformed Supreme Court law, backed by international law. Because according to the supreme law of this land, there is no longer any legal basis for Montana’s (and Idaho’s and Wyoming’s) antagonistic insistence on confining wild bison to Yellowstone National Park, largely excluding them from their natural habitats on National Forest lands, wildlife reserves, and public rangelands.
Americans are not going to stand for this much longer. We love buffalo, almost without exception. It’s our National Mammal for a reason. And in a very real, legal sense, the “cowboy emperor” of the American West has no clothes, no chaps, and no leg to stand on. He is, as they like to say, all hat and no cattle. The legal edifice of the cowboy myth is crumbling, and Earth will rejoice.
Montana’s Unlawful Interference With Tribal Hunting
According to the U.S. Fish & Wildlife Service, the historical range of wild bison in the Yellowstone ecosystem was about 7,700 square miles. They are currently limited by agency action to only 16% of that range, or about 1,200 square miles. That curtailment, and the continued “culling” of Yellowstone’s bison at the behest of Montana’s livestock industry, were cited by the Service as potential threats to the continued existence of wild buffalo, and the agency is currently considering whether or not to list the species for protection under the Endangered Species Act. 87 FR 34228 (June 6, 2022).
In light of recent rulings from the U.S. Supreme Court recognizing the primacy of off-reservation tribal treaty hunting rights, the state of Montana’s continuing insistence on severely restricting the natural migrations of Yellowstone’s buffalo throughout their historical range raises troubling questions of law and continuing ethnic genocide, as their obstruction largely deprives Indigenous Americans of access to their aboriginal food source, a right almost uniformly secured by various treaties.
Most recently the high court, in the 2019 case Herrera v. Wyoming, ruled that treaty tribes retain a “virtually unqualified right” to hunt on National Forest lands. The Court reinforced an earlier decision finding that a tribal member’s exercise of off-reservation hunting and fishing rights, which are considered to be the supreme law of the land under Article Six of the U.S. Constitution, is largely “immune” from State regulation.
That is worth repeating: off-reservation tribal hunting of wild bison, elk, and other traditional game on open federal lands, such as the Custer-Gallatin National Forest, is immune from State interference.
In fact, the only permissible grounds for state interference with Tribal treaty rights, according to the Supreme Court, is where the state can show that its actions are necessary to conserve the species. The State of Montana, of course, has never expressed any interest in conserving wild bison, as opposed to protecting private livestock interests, and its entrenched and outdated expression of intolerance towards the very presence of wild bison throughout the Custer-Gallatin National Forest appears to be in direct violation of the Supreme Court’s edict in Herrera, which involved tribal hunting on the Bighorn National Forest, and related cases.
Montana’s pretext for interfering with the free exercise of off-reservation treaty hunts - that is, their need to control the spread of brucellosis abortis, a cattle disease carried by both bison and elk - fails the Supreme Court’s two-part test on both counts: one, they are not advancing a conservation interest, since cattle are not wildlife; and, two, even if they could characterize their regulation of bison as something other-than-wildlife, they would still be unable to meet the necessity test, which requires that the state accomplish its objectives first by regulating their own citizens — in this case, the livestock industry.
Stated differently, the state of Montana, just as they are doing with elk, must control the spread of brucellosis by regulating cattle, not wildlife.
And even if they could not sufficiently regulate the livestock industry on this count, that still does not arise to the level of concern over the conservation of wildlife, which is the states’ only legitimate interest in regulating bison or any other wildlife species. That is fundamental law, not politics.
Broadly defined to include all "beneficial incidents" of occupancy, Native Americans’ aboriginal title to unoccupied federal lands — including national forests, wildlife refuges, and rangelands — has uniformly been found to include the rights to hunt and fish in all traditional (“usual and accustomed”) areas, unless and until extinguished by the federal government’s exercise of its plenary power. Shoshone v. United States, 299 U.S. 476, 496 (1937). Unlike the federal government, states do not have such plenary power under the U.S. Constitution. The tribes, on the other hand, have inherent rights grounded in their sovereign jurisdiction over Yellowstone’s bison that is superior to Montana’s limited interest in wildlife conservation, and is immune from Montana’s pecuniary interest in promoting its cattle industry.
The tribes have another important advantage relative to the state of Montana. When applying treaties that guarantee off-reservation hunting or fishing rights, courts are required by law to define those rights in light of the facts surrounding the treaty negotiations, and honor the tribes' probable expectations at the time the treaty was signed. That is, courts are instructed to resolve any ambiguities in treaty language in favor of the tribes.1
This last tenet of law is very relevant to the Yellowstone bison situation because the historical context of most, if not all, treaties signed in the west during the reservation period (1848-1868) were inherently linked to the right to hunt bison and their continued existence as wildlife. See, e.g.
Harjo, S. (2014) Nation to Nation: Treaties Between the United States and American Indian Nations (1st ed.).
Indigenous people during the time of treaties viewed hunting bison as a divine right bestowed upon them by Creator, and not as a political right to be bartered away. In many cases, the United States’ promise to protect the bison was the only reason any peace agreement was negotiated in the first instance. In this light, the attempt by the U.S. after those treaties were signed to extirpate bison entirely was a bad faith action that cannot now be rewarded by, e.g., maintaining wild bison populations at a few thousand, as the state of Montana still advocates for, when their natural numbers were between thirty and sixty million.
As already mentioned, once a court determines that an Indian tribe has retained the right to hunt and fish at sites off their reservation, the protection of federal recognition attaches in such a way that Indian Americans acquire rights superior to non-Indian Americans. United States v. Winans, 198 U.S. 371 (1905). Moreover, courts hold that off-reservation hunting and fishing rights obligate the state to ensure the availability of a fair share of game and wildlife life to treaty tribes. See, e.g., 443 U.S. 678-79 (1979). Montana has done just the opposite, of course, including forcing the federal agencies to enter into an oppressive bison management regime that has seen over 12,000 wild bison senselessly slaughtered. That renewed pogrom on bison, experienced as trauma by Native Americans, has never formally been sanctioned by the courts - including in the case from which it sprang, which was dismissed by consent of the parties upon entering into the negotiated management plan.
So even a cursory consideration of these bedrock legal principles reveals the inherently unlawful posture of Montana’s Department of Livestock in its decades-long interference with treaty tribes access to their aboriginal food source and their sacred family members, the American Buffalo.
How have they gotten away with it? Especially since the Supreme Court’s decision over access to game in Wyoming’s Big Horn National Forest in 2019? More to the point, how can they be brought to heel?
A Holistic Solution
Under the leadership of Nez Perce scientist James Holt, who was instrumental in asserting tribal rights to hunt bison when the state of Montana instituted its own hunt for its own citizens and to the exclusion of tribes, Buffalo Field Campaign is pursuing a holistic management solution to the Yellowstone bison crisis, an approach that includes advocating for a wildlife bridge for bison to safely access their calving ground on Horse Butte, securing protections for wild bison under the Endangered Species Act, and elevating the interests of both the tribes and bison by removing the livestock industry from having any say in how bison are managed on federal lands.
Once the state of Montana’s unlawful interference ceases, and the tribes enter into a co-stewardship agreement with the Park Service and Forest Service to manage an expanding population of wild bison, with room to roam, limitations or even a moratorium on hunting will likely be needed to encourage bison migrations to habitats they have not been allowed to access in many decades, beyond the current, constrained hunt zones. This restored relationship between an expanding population of wild bison and the tribes they co-evolved with will not only mark the beginning of true reparations for the genocide they survived, but will also regenerate the ecology they were once both integral parts of.
The “Green Wave” documented by Yellowstone National Park’s biologists will spread out from the Park itself, as the bison re-inhabit their historic range, spurring a resurgence of wildlife and grasslands. According to the cutting edge science of biological diversity, this ecological revitalization is one of the keys to stabilizing our climate in the long run, especially in an era of deepening drought. Yellowstone’s bison are one of just 20 “large mammal assemblages” that will be looked to in order to draw down all the excess carbon dioxide that we are currently emitting into the atmosphere.
BFC is committed to pursuing any and all federal/state protections of bison’s wildlife status necessary to support this national and global objective of ecological restoration through cultural reconciliation with the tribes. As an Indigenous-founded and Indigenous-led conservation group, BFC is uniquely positioned to be an active voice for promoting this vision, and will continue to reach out to the 28 tribes who have expressed their own tribal interests in Yellowstone Buffalo. The Secretaries of the U.S. Departments of Interior (Park Service) and Agriculture (Forest Service) have called on their agencies to “give consideration and deference to Tribal proposals, recommendations, and knowledge that affect management decisions on such lands wherever possible.” Nowhere is that more possible than here in Yellowstone.
This hopeful, holistic vision, grounded in the supreme law of the land, represents an opportunity to reconcile our past and become the first generation in human history to leave the natural world in a better place than we found it. It is an inclusive vision, embraced by the tribes in the Buffalo Treaty as well as by leading legal scholars recently in the Wyoming Journal of Law:
“The power and potential for a revolutionary model of tribal engagement in the management of the world’s first national park becomes clear only upon a recognition of the stifling limitations imposed upon tribal interests by the historical and existing federal-tribal relations in Yellowstone… Now, in the modern era of [U.N. and] federal policies committed to supporting tribal self-determination, the exercise of tribal sovereignty, and the ability of tribes and their advocates to expand and express their priorities across the full breadth of policy areas, there exists a wholly new basis from which to reset the relationship between tribes and the federal government… rooted in honoring the legal landscape encompassing inherent tribal sovereignty, aboriginal title, reserved treaty rights, and the federal government’s trust responsibility to tribes.”
“Re-Indigenizing Yellowstone,” Stark et al., Wyoming Law Review (2022) Download the PDF.
1 See: United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), qff’d, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976).