Since the 19th Century, the plight of the North American bison has paralleled the way of the indigenous people of buffalo bountry and the land itself: decimation, almost to the point of extinction, by non-tribal peoples. Likewise, nearly 150 years later, Indian country is in renaissance and so are the buffalo. But just as the Great Plains indigenous people bring the buffalo back from the brink of extinction, forces such as the State of Montana threaten the hegemony of indigenous people, the buffalo, and the land.
Today, wild bison herds on Montana’s Indian reservations face a new threat; proposed legislation aimed at ridding the state of free-ranging bison. The State of Montana introduced multiple pieces of legislation (S.B. 143, S.B. 256, S.B. 305, S.B. 341, & H.B. 396 ["bison bills"]), inclusive of all Montana Indian country and off-reservation Treaty-protected land, designed to rid the state of free-range bison.
For many years, the strongest opponent of any effort to revive the bison has been domestic cattle and livestock industry. The bison’s historical range, the Midwest grasslands of the United States, is dominated by the cattle industry. The cattle industry’s claimed fear is that bison carrying brucellosis — a genetic disease thought to be found in 30 percent to 60 percent of the wild bison population — will contaminate the cattle herds. According to the livestock industry, bison and cattle simply cannot share the same land. The State of Montana undoubtedly possesses a sovereign interest in managing its natural resources, which may include eradication of livestock related diseases for the general welfare. Now, livestock industry has exerted its enormous influence on the state to carry out its goal of bison extinction.
However, the tribes that originally inhabited these lands possess the conflicting right to manage, maintain, and hunt bison. The inherent tribal sovereignty doctrine, well developed in federal case law, stands for the principle that tribes retain all the rights and sovereignty not explicitly given away through either treaty, acts of Congress, or statute. At this point, Congress has not clearly and unambiguously divested tribes of the right to manage, maintain, and hunt buffalo. To the contrary, most of the Great Plains tribes have explicitly reserved the unrestricted right to hunt on all unoccupied land in their treaties with the United States. Federal Courts have held that states must refrain from diminishing treaty reserved natural resources, like bison, even off-reservation. Therefore, when legislation interrupts a tribe’s right to these treaty resources – as Montana’s bison bills unambiguously do – it must bow to the superior right of tribes. Legislation that does not will be stricken down as interfering with “the supreme Law of the Land,” per Article VI of the U.S. Constitution and the federal common law.
There is one exception to the rule that states may not interfere with this right: If the legislation is reasonable and necessary for the conservation of a State resource, it will be deemed not to interfere with a treaty right. But the regulation must be the least restrictive necessary to preserve the resource. Thus, the bison bills — cloaked in the cause of conservation and protection of cattle from brucellosis — will succeed only if the state can demonstrate that the regulations are reasonable and necessary conservation measures.
The evidence does not support such a showing. Research has not produced any documentation of free-ranging bison passing brucellosis to cattle or other domestic livestock. Moreover, Montana, which has targeted the bison, has given no attention to the thousands of wild elk which migrate on the plains every year and have an equal, if not superior ability, to contaminate domestic livestock with brucellosis.
The State of Montana cannot meet the burden of showing that the bison bills are reasonable and necessary to the conservation domestic livestock and/or public safety. There is no evidence that brucellosis is transmitted from free-range bison to domestic cattle and the extermination of all free-ranging bison herds is not narrowly tailored, failing to ensure that the tribes’ right to a bison culture and economy remains in perpetuity.
The law simply will not allow Montana’s legislative attack on tribal resources to stand.
Ryan Dreveskracht is an Associate at Galanda Broadman, PLLC. His practice focuses on representing businesses and tribal governments in public affairs, energy, gaming, taxation, and general economic development. He thanks budding Indian lawyer Maryanne Mohan for her phenomenal research assistance with this article.