Yellowstone Bison Plan Favors Tribal Culture Over Preserving Wild Bison

Yellowstone National Park recently released its Final Bison Management Plan. It arbitrarily limits bison numbers through tribal hunting outside of the park and the transfer of public Yellowstone bison to Indian reservations.

The NPS Preferred Alternative 2 is better than the existing bison management but will continue the degradation of wild bison.

Alt. 3 is slightly better in that it would potentially allow for higher bison numbers in the park and less manipulation of the bison herd.

Nevertheless, all alternatives continue the ongoing trend towards domestication of Yellowstone’s globally significant wild bison.  

PLAN ANTHROPOGENIC RATHER THAN BIOCENTRIC

The plan prioritizes human cultural desires over the need to protect the bison’s evolutionary and ecological role and future.

Yellowstone’s bison are the least manipulated and domesticated in the United States. The park bison herd has international significance, especially because NPS management favors maintaining evolutionary and ecological processes.

The Fish and Wildlife Service has recognized this significance, and it is currently reviewing whether Yellowstone bison should be given protection as a distinct population segment under the Endangered Species Act.

While the plan acknowledges preserving wild bison through evolutionary processes, it ultimately fails in this goal by setting a desired upper population limit of 7,000 bison. The bison number may increase, but if the 7000 animal number is approached, the NPS will capture bison for transfer to tribal reservations.

The worst part of the plan is its assumption that the Park has a legal obligation to grow bison so tribal members can shoot them outside of the park or should be distributing the public’s bison through transfer to tribal reservations, which effectively privatizes the public’s wildlife.

In other words, the plan is not about preserving the evolutionary and ecological of wild bison; rather, it is largely based on fulfilling a cultural rather than a biological preservation agenda.

I have some empathy for the Park’s dilemma. I suspect Yellowstone National Park would rather see bison permitted to migrate beyond the park border just as elk, mule deer, and other park ungulates do. However, the Park is under the gun from two political influences that, by “happy coincidence,” are united on the same outcome—the killing of the public’s wild bison.

MONTANA OPPOSITION TO WILD BISON

Most critics of the bison plan, particularly so-called conservation groups, focus on the Montana livestock industry. The Montana legislature opposes bison restoration in the state due to concerns about brucellosis transmission to domestic livestock.

Brucellosis is a bacterium that causes abortion in livestock. It can cause undulant fever in humans, but today, it is largely restricted to occupations like veterinarians and others who may handle infected animals.

 Though as much as 60% of Yellowstone’s bison show antibodies against brucellosis, that does not mean they are infected with the disease, any more than I carry polio even though I have antibodies to it from childhood vaccinations.

There has been no documentation of brucellosis transfer from bison to domestic animals in the wild. On the other hand, 27 instances of brucellosis transfer to livestock by elk have occurred. Yet neither the state of Montana or Yellowstone NP restrict elk migration and movement out of the park.

The state policies ultimately creates the perimeters for federal agencies like the Custer Gallatin National Forest and Yellowstone National Park management. There is no reason why bison shouldn’t be migrating and even residing on adjacent national forest lands, but for the intransigence of the state of Montana.

PLAN POLICY FAVORS TRIBES AT THE EXPENSE OF WILD BISON

While Montana opposes restoring wild bison to public lands in the state, the biggest threat to Yellowstone’s wild bison comes from the tribes.

Sec. of Interior Haaland has ordered that tribes be given exceptional management authority over Yellowstone bison and encourages the privatization of public bison by transfer to the tribes. This has been implemented without any opportunity for public review and comment through a NEPA process.

Montana Wild Bison Restoration Council, Sage Steppe Wild, the Gallatin Wildlife Association, Roam Free Nation, and Alliance for Wild Rockies support the management of the park’s wildlife to preserve its ecological values, not as a “hatchery” to produce bison for tribal slaughter.

While the bison plan recognizes the evolutionary value of the park’s bison, it doesn’t translate into their public trust obligation to preserve the park’s bison from continued domestication and degradation.

PLAN SHORTCOMINGS

The plan is based upon the tribes’ assertion that they have treaty “rights” to kill animals on public lands outside of Yellowstone’s northern entrance by Gardiner, Montana. According to the tribes’ interpretation, specific tribes have the authority to shoot wildlife throughout the year and without limits other than those imposed by the tribes themselves.

No public lands agency, including the Montana Department of Fish and Wildlife, Custer Gallatin National Forest, and Yellowstone National Park, has control over tribal kills.

Since 2006, Indian Tribes, including the Confederated Salish and Kootenai Tribes of the Flathead Nation, Nez Perce Tribe, Confederated Tribes of the Umatilla Indian Reservation, Yakama Nation, Blackfeet Nation, Shoshone-Bannock of the Fort Hall Reservation, Northern Arapaho Tribe, and Crow Nation have slaughtered bison on national forest lands adjacent to the park.

Restraint has not been a hallmark of tribal bison kills. For instance, out of 1272 bison killed or removed from Yellowstone’s ecosystem in 2023, tribal members killed 1150 bison, more than 25% of the park’s bison herds, not to mention other wildlife like elk, bighorn sheep, and pronghorn.

However, whether these treaty rights are legitimate has never been tested in court. Yellowstone National Park refuses to examine the issue claiming it is beyond the scope of the bison plan—even as the agency repeatedly suggests the tribes have treaty rights without providing any evidence other than the assertions of the tribes.

Given the controversial nature of that, I can understand why anyone or any government agency would hesitate to question tribal authority.

 The problem for those who advocate for wild bison is that nearly all conservation groups now put conservation of cultural goals over preservation of biocentric goals, especially if tribes are involved. At the same time, the livestock industry also wants bison numbers controlled.

The Montana Wild Bison Restoration Council, as well as others, assert that the tribes have no legal right to kill wildlife in this area. What is confusing to many is tribes do have legal treaty rights to hunt in other areas depending on the tribe’s original treaty wording, but I believe none have treaty rights to the lands near Gardiner.

For instance, the Final EIS bison plan suggests: “The NPS has committed to continue fulfilling its trust responsibilities (USDOI and USDA 2021) to American Indian Tribes by sustaining a large population of bison that supports hunter harvests outside the park and restoring more brucellosis-free bison to tribal lands.”

However, the NPS has no trust responsibility to the tribes; the Secretary of Interior Deb Haaland’s trust responsibility extends to real property or other assets that the Secretary holds on behalf of Indian Tribes or Indian allottees.

 The Secretary’s ultimate responsibility is to all citizens of the United States and to the wildlife entrusted to public agencies to manage wildlife for the good of all, not just the benefit of a few. Without a lawsuit, the NPS has adopted an expansive and extra-legal definition of “Trust” on behalf of tribes but neglects its trust obligation for wildlife.

Everyone seems to ignore a specific Supreme Court decision called the conservation requirement. Supreme Court Justice William O. Douglas declared that if any tribal resource exploitation jeopardizes the future of any entity, the government has a duty to protect that plant or animal.

Given that Yellowstone’s bison have globally significant biological, ecological and evolutionary value, one could argue that excess removal and effective animal domestication jeopardizes these creatures’ long-term wildness.

Furthermore, there is the question as to whether capitulation to tribal interests is anti-democratic and racist in that the plan expressly gives tribal groups more authority over public lands management than the public.

As a result, the plan surrenders the Public Trust to a political interest group—namely, tribal governments.

It is important to note that tribal people are like citizens everywhere. Some support the bison slaughter, while others are appalled by it. Unfortunately, those voices are drowned out by those who want to make their personal desire to kill bison trump what is ultimately good for bison.

However, I hold my condemnation for the spineless and virtue signing by so-called wildlife/bison advocacy organizations like Defenders of Wildlife, Greater Yellowstone Coalition, National Parks and Conservation, and Buffalo Field Campaign, among others,  who, instead of pressing for better treatment of the bison support tribal co-management because anthropogenic desires of tribal groups are more important to these organization than preserving wild bison. 

BRIEF HISTORY OF BISON

Bison were once found across much of the western plains of the United States and in some mountain valleys west of the Continental Divide. The acquisition of the horse made tribal hunters into super predators, for which bison had no evolutionary strategy for avoidance. It was not unusual for mounted hunters to kill thousands of bison daily.

By  1860, Indian hunting and perhaps changing climate led to the extirpation of bison from much of their former geographic range, including Idaho, Utah, SW Montana, western Wyoming, Manitoba, and to varying degrees across much of Texas, Oklahoma, Kansas, North Dakota, South Dakota, and Colorado.

Much of this slaughter was driven by tribal hunters who traded bison hides for guns, ammo, metal knives, axes, and other trade items that they could not produce themselves. In addition, the horse enabled tribes to prosper in other ways, including expanding the average size of teepees and becoming more mobile and warlike.

Tribal hunters focused on killing female bison because their meat was tastier, and cow bison hides were easier to treat and tan. As anyone involved in modern wildlife management knows, the way you reduce a wildlife population is to kill the reproductive segment or females.

The advent of the railroad in the West (after the 1870s) facilitated the transport of heavy bison hides and permitted large-scale commercial hunting. However, by the 1870s, when commercial hunting began, many herds (post-Civil War) were already extirpated, significantly reduced, and fragmented as a consequence of tribal hunting. Commercial hunting contributed to the final nail in the coffin of the western herds, leading to their functional extinction across the West.

When Yellowstone National Park was established in 1872, various estimates put the number of bison in the park at 1000. However, due to poaching, market hunting, and other human caused mortality, the number of bison dropped to as few as 23.

The continued poaching of bison ultimately led to the enactment of the Lacy Act in 1900, which prohibited the interstate trafficking of wildlife. The Lacy Act was the first legislation designed to save an endangered species.

This is a critical point to remember. Though Yellowstone bison are the least domesticated and the largest of any bison herd in the West, the animals have gone through what biologists call a genetic bottleneck—i.e., a potential loss of genetic diversity due to small effective breeding populations.

While the park’s herds now number between 4,000-and 5000 animals, genetic loss over time is still a factor to consider since bison are “tournament” breeders whereby one bull can breed 10 or 20 females thus the effective genetic diversity is smaller than what the overall population may otherwise suggest.

After the park was established, bison were fed in the winter on hay grown in the Lamar Valley at what is now known as the Buffalo Ranch.

For decades, bison within the park have more or less been influenced by natural evolutionary processes such as disease, predation, harsh winters, and other factors that have been selecting bison genes for thousands of years.

Unfortunately, the Park’s bison still suffer from human manipulation. In some years, bison are rounded up and either butchered or, at times, live bison are shipped to tribal reservations.

Even worse is the so-called tribal treaty slaughter that occurs outside of the park’s borders. In 2023, a minimum of 1150 bison were killed by tribal members almost as soon as they left the protection of the park.

Indeed, despite the protection offered to bison while in the park, human-caused mortality is, shockingly, still the biggest fatality factor for park bison. Over the past few decades more than 11,000 Yellowstone bison have been killed by hunters, slaughtered by the NPS or transferred to Indian Reservations. This represents a huge loss to the Park’s ecosystem.

TRIBAL TREATY SLAUGHTER

Yellowstone National Park’s plan repeatedly refers to tribal treaty rights throughout the document. Yet, when challenged to demonstrate or explain which treaties and tribes have such rights, the Park asserts that it is beyond the plan’s scope to objectively show that such rights legally exist. Just because the tribes assert they have such rights doesn’t mean they have any legal standing to kill Yellowstone bison by Gardiner.

 I, as well as others who commented on the Draft EIS, repeatedly argued that the tribes killing bison just outside of the park border near Gardiner did not have treaty rights to shoot animals in that area. Unfortunately, the NPS has chosen to accept tribal assertions of legal privilege to kill public wildlife without independently verifying whether such claims are valid.

The issue is complex, and I will give a brief explanation here, but suffice it to say the NPS refused to address the legality of tribal hunting by suggesting it was outside the “scope” of this EIS. Yet the plan relies almost entirely on tribal hunting or transfers to reservations as the primary mechanism for managing bison.

I believe the NPS wants to avoid a controversial issue by punting the question as to whether the tribes have any treaty rights to kill or even to receive live bison.

ECOLOGICAL IMPACTS OF BISON SLAUGHTER

Tribal slaughter of bison outside of the park borders, as well as the transfer of bison to Indian reservations, has numerous ecological impacts (which the so-called wildlife advocacy groups like Greater Yellowstone Coalition, National Parks and Conservation, Buffalo Field Campaign, and others failed to note, while all the time claiming they are working to “save” wild bison.

First, the bison that tend to be killed beyond park borders are the very animals that migrate. Migration has been one of the evolutionary ways that bison have survived since “time immemorial.” Thus, killing these bison removes this genetic tendency from the herds. It should be noted that the Montana Dept of Livestock and some Montana hunters have killed a limited number of bison over the last few decades.

Second, the bison removed from the park population reduces the natural evolutionary density-dependent influences on the remaining bison. Natural processes like predators, harsh winters, and disease have less selective impact when populations are reduced.

Third, the loss of bison biomass affects many other species. Scavengers, predators and insects have less to eat, reducing their overall fitness. 

Fourth, while human hunting of bison has occurred for thousands of years, numerous studies have shown that today’s hunters with modern weapons tend to kill the most fit animals in a herd, not the ones most vulnerable.

Fifth, the reduction in bison herds by transfer outside of the ecosystem or by killing on park borders reduces the grazing influence of bison on the park’s vegetation.

Sixth, the use of lead bullets and the concentration of gut piles have contributed to lead poisoning in some birds, like eagles, who incidentally consume the lead while feeding on bison remains. The abundance of offal also draws in grizzly bears to feed on bison remains right next to homes and a road next to the Beatty Gulch area, which may pose a safety issue and could lead to the killing of bears. 

All of these consequences tend to domesticate the bison and degrade the Greater Yellowstone Ecosystem. But none of the so-called conservation groups have ever voiced any concern for these ecological impacts-even as they solicit funds from gullible members to “save” the Yellowstone bison.

TRIBAL RIGHTS

While tribal people do have explicit rights to hunt, fish, camp, etc. on their reservations as well as some federal lands they formally ceded to the Federal government during the treaty process, tribal members do not have unlimited rights to kill wildlife on public lands.

In particular, no tribe has ceded territory just north of Gardiner where bison are slaughtered.

In the plan document, Yellowstone National Park claims it has no authority over tribal hunting outside of the Park. While this is certainly true, the Park Service has neglected its Public Trust to the U.S. citizens in deference to tribal interests.

Whether one believes the tribes have some inherent privilege based on the cultural right to kill public wildlife or not, the lack of attention to wildlife management principles harms the park’s bison. It is not 1850. Wildlife habitat and numbers are severely constricted. Tribal populations are higher now than perhaps at any time in the past 150 years. Tribal hunters come armed with high-powered rifles, pickup trucks, cranes (to assist in butchering), and all kinds of modern technological accessories.  Can any wildlife sustain unrestricted and unlimited hunting?

WHY TREATIES DO NOT APPLY BY YELLOWSTONE

No doubt, to the degree there is public support or acceptance of bison killing is based on the belief that tribes have a treaty right to kill bison on the Custer Gallatin National Forest adjacent to the northern boundary of Yellowstone Park.  

A recent Supreme Court decision, Herera vs Wyoming, declared that Crow tribal members can hunt off reservations on “unclaimed” public lands managed by the Forest Service and Bureau of Land Management.

In this case, a Crow tribal member, Clayvin Herrera, killed three elk without a license out of season in the Big Horn National Forest. Herrera was arrested and charged with violations of Wyoming game management laws and was convicted However,. Herrera claimed he had treaty rights that superseded Wyoming’s Fish and Game laws. The Supreme Court eventually took up the case and in a 5-4 decision remanded the case back to the lower.

However, Herera vs. Wyoming did not give tribal members unlimited freedom to hunt anywhere on public lands across the West. Several important restrictions exist, including that tribes may, in some cases like the Crow, hunt on ceded lands or land tracts traded to the US government.

Many tribal members likely sincerely believe they have a legal right to hunt Yellowstone bison beyond park borders. .

While it is true that tribal treaties did extend the right to hunt, fish, and camp on “unclaimed” lands of the United States, usually defined as those public acreages managed by the Bureau of Land Management and U.S. Forest Service, the rights are not unlimited.

Tribes may only hunt on “ceded” territory. So, for example, the Nez Perce tribe’s ceded territory lies along the Montana-Idaho border, hundreds of miles from Yellowstone National Park, invalidating their claims for hunting by the park. The same is true to one degree or another to all tribes currently claiming a right to kill Yellowstone bison. No tribe has ceded territory west of the Yellowstone River and north of Yellowstone Park.

Another treaty that is commonly used by those asserting tribal treaty rights by Yellowstone is the 1855 Lame Bull Treaty with the Blackfeet and several other tribes, which set up a “common” hunting ground in Southwest Montana. However, Article Four of that treaty had a 99-year termination clause and was invalidated by 1954.

The third major rationale for tribal bison hunting by Yellowstone is based on the clause in treaties with tribes of the Columbia River drainage, like the Nez Perce, Salish Kootenai and others: ” 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.”

 This basically guaranteed salmon-dependent tribes the right to spear, net, or otherwise capture fish at waterfalls and other traditional fishing sites that may exist outside the reservation’s boundaries. Of course, there are no tribal fishing spots near Gardiner.

However, even this right had limitations. The above quote is taken out of context. The courts have generally required a showing of actual use and occupancy over an extended period of time.

Given bison’s mobility, it is difficult to claim exclusive use and occupancy of any specific location over an extended period of time. It would appear that most tribes, including the Yakima, Nez Perce, Umatilla, Cayuse, and Colville, do not have treaty rights to hunt bison in Yellowstone.

Finally, in the court case Department of Fish and Game Washington vs. Puyallup Tribe, the Supreme Court recognized that a species’ conservation value may override any tribal treaty rights.

 In other words, if tribal exploitation through hunting or fishing appears to jeopardize the conservation value of the species, the government can seek to protect the species by limiting tribal exploitation.

It’s important to note that conservation value does not just apply to the overall population, but district population segments are covered by this rule. Bison, as a species, are not “endangered.”

The Court determined that “Preserving a “reasonable” margin of “safety” between an existing level of stocks and the imminence of extinction is the heart and soul of conservation. Limitations on the geographic aspect of tribes’ treaty rights to promote that end are permissible.”

Since nearly all bison herds outside of Yellowstone are domesticated to one degree or another and subject to artificial selective factors like feeding animals in winter, killing of aggressive bulls, vaccination, fencing, age structure differences, and other aspects of domestication, the Yellowstone discrete population segment has significant conservation value.

What makes Yellowstone bison special is they are the largest herd in the United States that has been subject to the least amount of human manipulation. Still, the ongoing bison killing and transfer are undercutting their wildness.

At issue here is whether the ongoing human-caused mortality and removal of Yellowstone’s wild bison jeopardizes their “wildness” or, to put it another way, their evolutionary characteristics that have since “time immemorial” permitted the bison to survive across the centuries.

Given that Yellowstone bison are of international significance and currently a candidate for listing under the Endangered Species Act, the Federal Government has an obligation to protect the park’s bison from hunters and transfer.

Nearly all conservation groups will not challenge tribes on any issue, including examining their assertion that they have treaty rights to slaughter bison for fear of being targeted as racist. I examine this trend in my piece the Indian Iron Curtain. And so the bison continue to suffer.

OTHER BISON AVAILABLE TO MAINTAIN CULTURE

Finally, while it is understandable why tribal members would wish to kill bison near Yellowstone since there is no cost other than showing up with guns and ammo.  The cultural “value” of shooting bison used to tourists who stand as herd members fall before the bullets, can be readily obtained from other sources. Numerous private bison ranches allow hunters to kill or purchase bison meat.

Many tribes have their own bison herds. Some tribes have sufficient bison numbers that they allow non-tribal members to kill bison on their reservations. The Fort Belnap Indian Reservation and Fort Peck Indian Reservations sell licenses for non-tribal members to kill bison (many of which originated from Yellowstone bison sources. The Blackfeet offer “trophy bison hunts”.  If reservation bison are so abundant that non-tribal members can kill them, is it really necessary for any off-reservation tribal slaughter of Yellowstone bison when doing so has a major ecological impact on the ecosystem and long-term evolutionary integrity of the park’s wild bison?

BISON ARE A PUBLIC RESOURCE

Yellowstone’s bison are a public resource. Although transferring them to Indian Reservations, which may be a more acceptable than the alternative for most people over shooting them, transferring bison still privatizes the public’s wildlife.

There are numerous places on public lands where “excess” bison (if there are any) can be transplanted including the Charles M. Russell National Wildlife Refuge-Missouri Breaks National Monument complex of Central Montana, the Red Desert region of Wyoming, as well as expansion of bison herds throughout the Greater Yellowstone Ecosystem (i.e. Centennial Valley-Gravelly Range-Snowcrest Range (MT), Upper Green River (WY), and Birch Creek—Idaho National Laboratory (ID). Public bison should remain on public lands.

The Secretary of Interior has the authority to direct, over state objections due to the primacy clause of the federal government, that any “excess” Yellowstone bison be transplanted to suitable federal public lands like the Charles M. Russell NWR in Montana.

The other option is to greatly expand Yellowstone National Park to include much of the surrounding national forest lands to create a Greater Yellowstone National Park. A larger park would automatically support a much larger bison population, which would allow for greater genetic diversity and preservation of evolutionary processes.  

SUMMARY

While the Yellowstone bison plan has some definite improvements over current management, Yellowstone Park manages to avoid discussing the elephant in the room—whether bison hunting, particularly as practiced by the tribes, is legal and whether such hunting and transfer jeopardize the ongoing future of wild bison. Ultimately the state’s opposition to wild bison creates the sidebars for the bison plan. Nevertheless if the state welcomed bison on public lands adjacent to the park, it is questionable whether bison would get there through the lead fence (bullets) due to tribal hunting.

We humans owe the bison a future where they can pursue their lives as wild independent creatures, or will we continue the path towards domestication that current management policies are inevitably leading?

Of the three alternatives, Alt. 3 is the best as it would rely on natural selection, allowing bison dispersal. If bison wander from the park, public and Tribal harvests in Montana will regulate total numbers, which would likely range from 3,500 to 7,000 or more animals after calving. However, any unnatural selection by hunters or transfer of bison from Yellowstone does not maintain “natural” populations or the ecological integrity of the Greater Yellowstone Ecosystem.

The FEIS was released on June 7th with 30-day waiting period, after which the Record of Decision will be signed and the plan will be implemented. For those inclined to voice your opinion on the plan, you can contact:

https://parkplanning.nps.gov/YellowstonebisonEIS or contact the park at: Park Headquarters, Superintendent, Attn: Bison Management Plan, P.O. Box 168, Yellowstone National Park, WY 82190.