In a feature length article that ran in the Sunday Billings Gazette and Helena Independent Record, reporter Brett French quoted at length from this weekly newsletter regarding the issue of Montana's unlawful interference with the Tribes' exercise of treaty right jurisdiction over the only remaining wild bison, who are restricted to only 15% of their historic range, according to the U.S. Fish & Wildlife Service. It is important for people to understand that Tribal Sovereignty is not granted by treaties with the U.S. Instead, it is inherent to their rights as human beings, which includes the right to unfettered access to wild bison, which is central to their way of life and constitutes their aboriginal food sources. Treaties were a way for the U.S. to extort Tribes into surrendering certain rights, and the courts have been clear that unless a sovereign (self-ruling) authority is expressly surrendered in a treaty, or expressly revoked by Congressional act, non-sovereign states like Montana and Idaho must refrain from any regulations that interfere with those sovereign authorities and territorial rights preserved by treaties. Under these clear legal principles, any concerns Montana might have over wild bison interacting with domestic cattle must be addressed by regulating cattle, not bison.

BFC photo 21

Here is an excerpt from the Sunday news article regarding this point, and the comments from the University of Montana law professor:

The bison advocacy group Buffalo Field Campaign, based outside West Yellowstone, has touted a possible legal argument to challenge Montana’s treatment of bison.

BFC has posted online and written in its newsletter its belief that “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 … 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 to treaty tribes … 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.”

BFC continued, “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.”

Kekek Stark, a law professor at the University of Montana, said after studying the group’s published account at the Billings Gazette’s request, that he interpreted the group’s argument as: Since tribal hunting rights are guaranteed, the state has no right to not let bison roam outside the park so they can be hunted.

“It seems to me that the group is arguing that 1) the bison should be free to roam in its original habitat, including outside the park, 2) while roaming, the state does not have unfettered discretion in how the bison are managed, i.e. culling to protect livestock, and 3) treaty tribes should be able to harvest them,” Stark wrote in an email. “There are legitimate legal arguments for all three positions.”

In comparing BFC’s legal arguments to Northwest tribes’ claims regarding salmon fishing, Stark said, “If a regulation is restrictive of treaty rights it must be necessary for conservation purposes.”

That should open some eyes! And provide a clue, as well, as to where BFC is heading with all this. While your faithful BFC Director of Communications happens to be a retired public interest wildlife attorney, I cannot take credit for this new strategy. BFC was blessed this year by the arrival of a volunteer from the Standing Rock Tribe who wanted to be with the Buffalo, like all of us here, but who just happens to be one of the leading legal experts in the country on Indian Law. Our Executive Director, himself a member of the Nez Perce Tribe, was so impressed he decided to hire him. Next week, as we honor the memory of our co-founder Rosalie Little Thunder, we will introduce you to our new Tribal Liaison, Patrick Kincaid.

We think you'll be impressed, just as we all have been by Patrick's presence, knowledge, and vision.

You can read the full story from Brett French here:


The Basics: What is Tribal Sovereignty?

Tribes possess all powers of self-government except: (1) those relinquished under treaty with the United States; (2) those that Congress has expressly extinguished; and (3) those that the federal courts have ruled are subject to existing federal law or are inconsistent with overriding national policies. Tribes, therefore, possess the right to form their own governments; to make and enforce laws, both civil and criminal; to tax; to establish and determine membership (i.e., tribal citizenship); to license and regulate activities within their jurisdiction; to zone; and to exclude persons from tribal lands.

Limitations on inherent tribal powers of self-government are few, but do include the same limitations applicable to states, e.g., neither tribes nor states have the power to make war, engage in foreign relations, or print and issue currency.