Tribal members gutting a bison killed on Custer Gallatin National Forest land near Gardiner, Montana.
As of a week ago, as many as 1,139 bison have been slaughtered by tribal members. Yet the entire so-called tribal bison “hunt” may be illegal. Yet, no group, including those who profess to care about the bison, including the Greater Yellowstone Coalition and Buffalo Field Campaign, has been willing to challenge the tribal assertions that they have “treaty rights” to kill Yellowstone bison.
Here’s a link showing the aftermath of this horrific slaughter of our national mammal.
WHY TRIBAL HUNT BY GARDINER MAY BE ILLEGAL
Please bear with me as I explain why tribal hunts may be illegal.
The treaties between the tribes currently killing bison at the boundary of Yellowstone National Park and the U.S. government typically designated a “reservation” where the tribe would live.
Most treaties also include reserved rights outside the reservation borders, including the “privilege of hunting on open and unclaimed lands that the tribes ceded to the U.S. government.
- Article 3 or 4 common to all Treaties: Nez Perce Treaty of 1855 -Hell Gate Treaty of 1855, Confederated tribes of the Flathead, Kootenay, and Upper Pend d’Oreilles Indians, Confederated Tribes of Cayuse, Umatilla and Walla Walla, and Fort Bridger Treaty (Eastern Band Shoshoni and Bannock 1868)
The exclusive right of taking fish in all the streams where running through or bordering said reservation is further secured to said Indians: as also the right of taking fish at all usual and accustomed places in common with citizens of the territory, and of erecting temporary buildings for curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land.
One legal review I read concludes that to determine the existence of original Indian title to land, and the right to hunt and fish following from that title, courts have generally required a showing of actual use and occupancy over an extended period of time. In Mitchel v. United States [34 U.S. (9 Pet.) 711, 9 L.Ed. 283 (1835)] the United States Supreme Court said: Indian possession or occupation was considered with reference to their habits and modes of life; their hunting grounds were as much in their actual possession as the cleared fields of the whites; and their rights to its exclusive enjoyment in their own way and for their own purposes were as much respected, until they abandoned them, made a cession to the government, or an authorized sale to individuals.
These “ceded lands” extend beyond the reservation boundaries and are defined primarily as certain public lands (such as National Forests) not set aside for uses incompatible with hunting, like national parks.
Such public lands are considered open and unclaimed and open to hunting. The specific boundaries of ceded lands are usually described in treaties.
As sovereign governments, the tribes exercise their right to set regulations that may differ from those established by the state Fish and Wildlife Commission. On their reservations and ceded lands, tribes are not obligated to follow state wildlife game laws. Instead, they can set up their seasons, bag limits, and other necessary restrictions. The tribes are responsible for enforcing their own regulations.
Big Horn Mountains in Wyoming, part of the Crow Tribe’s ceded lands. Photo George Wuerthner
The legality of hunting on ceded lands was recently upheld by a recent Supreme Court decision, Herrera vs. Wyoming. The Court determined that a Crow Indian tribal member who had shot elk on the Big Horn National Forest (part of the “ceded lands” of the Crow Tribe) outside of the state hunting season in Wyoming was not in violation of state wildlife regulation since he killed the elk on “ceded lands.”
For instance, here is the Nez Perce tribe treaty, which, among other things, describes the Nez Perce “ceded lands” as ending on the Bitterroot Mountains along what is now the Idaho-Montana border-hundreds of miles from Yellowstone National Park.
Here’s a map of the Nez Perce Reservation and ceded lands.
None of the tribes who have killed over 1000 Yellowstone bison have ceded lands near Gardiner, Montana, where the ongoing bison slaughter occurs.
The large white area lying between the Crow (pink), Blackfeet (purple), Shoshone (yellow) and Flathead (orange) includes Yellowstone Park is not part of any tribe’s ceded lands.
A map showing the ceded lands of various tribes is found here.
I am unaware of any legal authority superseding the treaty definition of the ceded territory. I have asked some federal agencies and tribal advocates to provide me with documentation that replaces the “ceded lands” provisions. Thus far, I have not been able to obtain any legal statement that invalidates my concerns.
ECOLOGICAL IMPACTS OF TRIBAL BISON SLAUGHTER
Regardless of whether tribal slaughter is legal, it has significant ecological impacts. As I have written in previous accounts, tribal bison butchery harms Yellowstone Park’s ecological integrity and bison genetics.
The tribal hunters’ removal of biomass (bison) is essentially strip mining food that would feed native species, from scavengers like ravens and coyotes to predators like grizzlies to wolves.
Coyotes feeding on dead bison in Yellowstone NP. Photo George Wuerthner
Indeed, the annual kill may even indirectly harm the recovery of grizzlies and wolves. When there is less carrion or even weakened bison in the Park (due to hunting along park borders), both grizzlies and wolves may wander outside of the protective boundaries of the Park, where hunters may kill them.
It’s not much of a stretch to suggest that the destruction of 26 Yellowstone Park wolves that wandered outside of the Park seeking prey this last year may be partially the result of the removal of weakened park bison that wolves might otherwise have killed in Yellowstone.
As herd animals, bison form social bonds, much like wolves. As has been determined, even eliminating a single wolf from a pack can harm its success. The indiscriminate slaughter of bison may have a similarly harmful effect on bison social behavior
Bison migrating to lower elevation to find forage. Photo George Wuerthner
Worse for Yellowstone bison, the very bison being eliminated are the animals most inclined to migrate. Over time, this selective removal of migrating animals may reduce or eliminate this behavior in the park bison. One consequence of bison bottled up in the park borders may be some harm to plant communities.
A further impact is that the original Yellowstone bison herd had approximately 25 animals. Starting with such a small herd means the animals already went through a genetic bottleneck. This loss of genetic diversity is heightened by the tournament mating of bison, where one bull will often impregnate many cows. Some genetic experts believe a minimum of 2500-10,000 animals are necessary to ensure the long-term genetic integrity of the Yellowstone bison herd. Thus, the annual culling of the Park’s bison results in a continuous reduction in the herds.
Finally, the tribal slaughter is essentially doing the bidding of the Montana livestock industry, which seeks to bottle up Yellowstone bison in the Park based on the exaggerated threat of brucellosis transmission to cattle.
Groups like the Buffalo Field Campaign, Greater Yellowstone Coalition, National Parks and Conservation, and all the other so-called conservation/wildlife groups that suggest they are protecting and promoting Yellowstone bison ignore the real ecological impacts of tribal hunting, as do groups supposedly advocating for wolves and grizzlies or even the ecological integrity of Yellowstone Park.
None of them voice objection to the tribal slaughter based on ecological impacts to the bison or park.
CULTURAL PRESERVATION QUESTIONED
The argument that tribes are continuing their “cultural practices” ignores the use of modern weapons that dramatically enhances their ability to kill bison. In the days before cultural appropriation by the tribes of guns, horses, and other contemporary European artifacts, the ability to kill thousands of animals was infrequent. Hunting with spears and even bows and arrows limited the number of animals that could be killed and utilized. Occasional mass killings at bison jumps were rare and only occurred when all the stars lined up.
Even with the limited technology of the 1800s, Indian hunting was culpable for the decline of bison across the West. For instance, by 1840 bison were extirpated from SE Idaho and adjacent areas by tribal hunting.
Perhaps I am misinterpreting the treaties, but my reading of these treaties seems to suggest that no tribes have ceded lands adjacent to Yellowstone. Thus, they do not have any legal authority to kill bison.
I put this out as a challenge. If I am wrong, I hope to see the documentation that permits this bloodbath to continue. Even if this slaughter is legal, it certainly is not ethical and is harmful to the values of the Park.
I do not so much hold the tribes responsible and culpable for this slaughter as much as I do the silence of so-called conservation groups. I have sent my concerns about “treaty rights” to several organizations suggesting they could investigate whether the bison slaughter is legal. But, unfortunately, none has shown any interest, even though it could end this sickening spectacle.