Tribal Advocates Ignore Ecology and Legal Aspects Of Bison Slaughter

Bison migrate from Yellowstone National Park to access snow-free areas where they can obtain forage. Photo George Wuerthner 

This winter, more than a thousand bison were killed by tribal members after leaving Yellowstone National Park’s protection. Last week, I found some recent carcasses killed by the tribes, but the good news is that most of the bison are now back within the safety of the park, hopefully ending this year’s spectacle of the unrelenting slaughter of the public’s wildlife.

The carcass of a bison calf, one of several killed I found a week ago near Corwin Springs . Photo George Wuerthner 

While I agree with some advocates of tribal bison slaughter that the problem of the bison butchery is partially related to the Montana Dept of Livestock’s insistence on bottling bison up in the park and keeping them from migrating into Montana, this assertion misleads people.

First, if the tribes weren’t killing the bison, the Dept of Livestock would try to control the bison movements. If Dept of Livestock agents had killed more than a thousand bison, I am confident there would be a massive outcry from the public. So, in effect, the tribal slaughter is doing the bidding of the ranchers.

And I am equally certain that if the Dept of Livestock changed its position and allowed bison to roam, the tribes would still be there slaughtering bison.

Some assert that the reason this tribal slaughter is so profoundly distasteful is due to the limitation of the hunt to the Beatty Gulch area.

However, the Beatty Gulch area is a geographically confined corridor that determines bison movement. It is the natural migration pathway, so it’s not the legal boundary for the hunt that makes it a spectacle but the geography that funnels bison into that area. So even if the tribes were hunting everywhere, they would still choose to kill bison in this confined area since it is the most effective and accessible area to shoot them.

Beatty Gulch is framed by mountains to the west and the Yellowstone River to the east. The area is a natural migration corridor that bison use. Photo George Wuerthner 

Furthermore, most tribal advocates like the Buffalo Field Campaign, Greater Yellowstone Coalition, Western Watersheds and other groups unwilling to call out the bison slaughter ignore the ecological impacts of the tribal hunt.

The slaughter has ecological and evolutionary impacts. The tribal kill selects against those individuals who tend to migrate by eliminating them from the population. Tribal slaughter removes biomass from the ecosystem that would otherwise support wolves, grizzlies, and other wildlife if they remained in the ecosystem to die from predation or natural causes like starvation. The removal of such a large number of animals exacerbates the impact of past genetic bottlenecks, especially given that bison are tournament breeders, with one bull doing a significant amount of breeding. At least one conservation genetic expert suggests a metapopulation of 10,000 animals is needed for long-term genetic integrity. And the indiscriminate killing is harming social bonds.

In essense, the tribal hunt is domesticating the wildness out of the Yellowstone bison herd. Read why wildness is critical here.

I have written extensively about these ecological impacts.

Bison carcasses near Yellowstone’s boundary killed by tribal members. Photo c/o Bonnie Lynn  

Beyond the ecological impacts, it’s unethical the way the hunt is conducted. I cannot believe that any of these organizations would support such a spectacle if it were done by white hunters–even if legal.

While most of these organizations decry the killing of Yellowstone wolves outside of the park–which unfortunately is legal–they say not a word about the slaughter of bison when they move beyond the boundaries of Yellowstone.  Some say well it’s legal for the tribes to kill bison–an assumption I quesation below–but even if it were legal, why are these groups silent in the face of bison butchery?

Some advocates suggest that tribes hunt for food, so ethical considerations have no place in the discussion. It begs credibility to suggest that tribal members have to kill Yellowstone bison or somehow they will starve. Beyond the fact that no one, and I mean no one, needs to hunt to “feed their families,” it is questionable whether the tribal butchery by Yellowstone is necessary.

I certainly agree that if you are going to eat meat it is more ethical to hunt animals than go buy a butchered cow at the grocery store. However, I have sidebars on this generalization.

The Yellowstone bison herd isn’t just any bison herd. They are among the few bison herds that are still largely influenced by evolutionary and ecological influences–i.e. they are still “wild.” You don’t kill animals that are endangered or limited in distribution. Ironically some of the same organizations that support the bison carnage also support endangered species status for the Yellowstone bison. Furthermore, tribal members have the opportunity to hunt other far more abundant species like elk and deer.

Tribal members hunting the bison have the funds to buy fancy pickups, horse trailers, high powered rifles, ATVS, and other assessories of the hunt but say they hunt to “feed their families”. Photo George Wuerthner 

The tribes spend more on gas, motels, rifles, fancy pick us, ATVS, etc. than they gain in avoiding food costs by supplementing their diet with bison meat. Just go watch the hunts and ask yourself how much the new Ford or Dodge Ram pickup trucks cost that tribal members are using to transport the carcasses.

Furthermore, many of the tribes killing the public’s wild bison possess bison herds. The Blackfeet, for instance, charge hunters to kill bison on their reservation but then turn around and kill the public’s wildlife by Yellowstone, saying they “need to feed our families.”

And contrary to the common myth, Indian hide hunting (hides were traded for guns, ammo, and other goods) were culpible in the demise of bison herds. I, as well as others historians, have written extensively about the tribal contribution to bison extirpation.

Bison were extripated from Idaho, western Wyoming and Southwest Montana by 1840 and gone from North Dakota, Minnesota and Manitoba by 1849. By the 1850s Comanche and other tribes on the southern plains were starving due to the decline in bison herds. This was all before the commercial hunting on the plains that occurred in the 1870s and 1880s which finished off the last herds.

Plus contrary to common mythology, it was not US policy to kill off the bison to starve the Indians. Indeed, in 1874 Congress passed legislation to make the killing of any female bison by any white person illegal. President Grant supported the Act, but missed the narrow deadline to sign the leigslation into law.

If there are “excess” bison let’s at least do right by the bison and help them to recolonize former habitat  establishing a “wild” herd of bison at the Charles M. Russell Wildlife Refuge.

Beyond all these issues, I am increasingly convinced that slaughter is illegal. What one hears from tribal advocates is that “treaty rights” give the tribes authority to kill Yellowstone bison. However, treaty rights are not unlimited. Specific sidebars dictate where and when tribal members can hunt, and the area north of Yellowstone is not one of them.

This issue was before the Supreme Court in 2019. In this case, a Crow tribal member who killed some elk in the Big Horn Mountains of Wyoming out of season and without a license was arrested. The tribal member claimed he had a right to hunt off the reservation. In the recent 2019 Herera vs. Wyoming Supreme Court Ruling the Court agreed that tribes CAN hunt off reservations on “ceded lands” that are “open and unclaimed.” This “open and unclaimed” has been interpreted to mean FS and BLM lands. However, it is not an open-ended right to hunt anyplace.

The limit of the treaty right is “ceded lands.” That’s a significant limitation. It doesn’t mean that tribes can hunt anywhere on public lands. If that were the case, nothing would preclude Seminoles from Florida or Navajo from Arizona from killing bison near Yellowstone.

Here is a link to Herera vs. Wyoming. In that decision, the court said: “The Shoshone-Bannock Tribes, like the Crow, had accepted a reservation while retaining the right to hunt in the lands previously within their hunting district. Their treaty reserves the same right, using the same language, as the Crow Tribe’s treaty.“

The phrase hunting district means the ability to hunt on unclaimed public lands is not an open-ended “right” to hunt anyplace. It’s important to note that the court only granted the right to hunt off of a reservation to “ceded lands.”

The inability of a state to regulate hunting within its borders is anti-conservation. Something that I would think tribal hunting advocates would show some concern about.

Human hunters have other options besides slaughtering endangered wildlife (like the tribal killing of wolves in Washington, the decline of Beluga whales in Alaska due to tribal hunting, or the spearing of endangered chinook salmon on their spawning beds in Idaho and many other examples I could give.)

And these treaties are pretty specific about what constitutes the reservation and what is ceded territory. The ceded lands of the Nez Perce (who have killed the most bison this winter) end at the Bitterroot Divide. Their ceded territory doesn’t even enter Montana anyplace.

The 1855 Treaty with the Blackfeet also had a 99-year limit–and obviously, we passed 1955 a long time ago, so the Blackfeet have no ceded territory outside of their reservation.

However, the critical point is that no tribe has ceded lands by Gardiner. I will attach a map created by the Judicial Review in 1978 that shows the extent of “ceded” lands. What you will see is a big white area in SW Montana where no tribe has ceded territory, and this includes the site north of Gardiner.

People who claim that tribes have lived or hunted in the Yellowstone area since “time immemorial” thus gives tribes the right to hunt wildlife on any public lands without compliance with state hunting regulations are either disingenuous or demonstrating their ignorance of tribal movements.

All the tribes now residing in Montana and adjacent areas like Wyoming and Idaho are “immigrants” that have recently colonized the region. The Crow (originally from Ohio) arrived in Montana from the Dakotas in the 1600s. In the 1700s, the Blackfeet (another tribe initially from eastern Canada) lived in the Canadian provinces of Saskatchewan and likely occupied northern Montana in the late 1700s or early 1800s. The Cheyenne (a tribe from the Upper Great Lakes) did not arrive in Wyoming until the 1830s. The Shoshone immigrants from Mexico and Central America colonized the Great Basin. The Nez Perce, Flathead etc., are all Plateau tribes from east of the Cascades. The acquisition of the horse in the 1700s facilitated the movement of nearly all these tribes into the region.

Many people assert that the “treaties” give the tribes the right to hunt by Gardiner; however, no legal evidence supports that contention.

The Gallatin Wildlife Association recently used the Freedom of Information Act (FOIA) to question the Custer Gallatin NF (CGNF)  assertion that the tribes have treaty rights to kill bison by Gardiner.

It turns out that the FS has no documentation to support the legality of the hunt. And the FS makes the same error that others have made–just because a treaty says a tribe can hunt on open and unclaimed lands, does not mean all public lands are open to hunting. The limit is the land the tribes ceded that today are FS or BLM lands.

For example, the Nez Perce can hunt on the Clearwater-Nez Perce NF because that is specifically mentioned in the treaty. But it doesn’t give the Nez Perce the right to hunt on the Bitterroot, Beaverhead, Challis, or any other national forest.

Here are the questions GWA put forth to the CGNF and their response.

1. Please provide GWA with the Executive Orders that empower tribes to hunt along the periphery of the YNP. I would like a copy of those orders, and I would like the copies to show the date it was signed, and the authorized signature identifying title and rank in their agency.
2. Please provide GWA with the statue that empowers tribes to hunt along the periphery of the YNP. I would like a copy of the statue and I would like the copy to show the date it was signed, and the authorized signature identifying title and rank in their agency.
3. Please provide the documentation that states that tribes can hunt on public lands outside the Tribe’s ceded territory.
4. It has been stated that Native people have aboriginal rights that stem from their original occupation of the land. Please give GWA the documentation that proves those rights.

Here is the FS response, which I have attached below as well.

No records were found for item 3 as there are no Executive Orders empowering tribes to hunt.

• No records were found for item 4 as there are no statutes other than the treaties that empowers tribes to hunt. Forest Service Manual 1500 Chapter 1560 discusses treaty rights and the agencies federal trust responsibility. We interpret this as part of their treaties.
• No records were found for item 5. Under 16 USC 7912 (also available online) federal land, including National Forest System lands, are presumptively open to hunting and fishing. In addition, federal courts have ruled that certain public lands, including National Forests, not set aside for uses incompatible with hunting can be considered open and unclaimed.
• Finally, no records were found for item 6 that would attempt to “prove” rights to hunt. The agency does not “permit,” “authorize,” or “allow” tribes to hunt on National Forest System lands.

That a federal agency like the CGNF cannot find any documentation that authorizes hunting by the tribes near Yellowstone National Park, suggests that “treaty rights” are limited. They are not open-ended. A tribe cannot decide to hunt, fish, or whatever on just any public land.

Yet, I continue to be disappointed that in the face of the butchery that is ongoing near Gardiner, more groups, especially those with lawyers on their staff, aren’t investigating the legality of this tragic spectacle.

Bison heads in pick up with snowmobile. Photo George Wuerthner

At the very least, if there are any “excess” bison that can be removed from the Yellowstone ecosystem, we should be restoring them to the Charles M. Russell Wildlife Refuge in central Montana as advocated by the Montana Wild Bison Restoration Coalition.

I may be proven wrong about the legality of the hunt—but no one has yet contradicted my interpretation with any contrary legal documentation. However, I know I’m not wrong about the ecological impacts to the Yellowstone ecosystem. You have to wonder why groups that suggest their mission is to protect the integrity of the public lands aren’t at least condemning the tribal slaughter based on ecological and evolutonary grounds.

You have to ask these organizations, “which side are you on?” Do you support the wildlife that does not have a voice or humans? Far too many organizations have been taken over by the Anthropocene Booster movement which puts human desires ahead of ecological, evolutionary, and nature’s rights. And I am afraid the loser will be our wildlands, wildlife, and even the appreciation of nature’s beauty.

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