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Montana’s Bison Bills: Another Attack On Buffalo Country

“The American Indian is of the soil . . . He fits into the landscape, for the hand that fashioned the continent also fashioned the man for his surroundings. He once grew as naturally as the wild sunflowers, he belongs just as the buffalo belonged . . .” – Luther Standing Bear, Sioux Chief

“Only seven years ago we made a treaty by which we were assured that the buffalo country should be left to us forever. Now they threaten to take that from us also.” – Sitting Bull, Sioux Chief


Since the 19th Century, the plight of the North American bison has paralleled the way of the indigenous people of Buffalo Country and the land itself: decimation by non-tribal peoples, almost to the point of extinction. Likewise, nearly 150 years later, as the people and land known as “Indian Country” are in renaissance, the buffalo have also returned. But no sooner than Great Plains indigenous people have brought the buffalo back from the brink, do forces like the State of Montana threaten that hegemony of indigenous people, the buffalo, and the land.

The obliteration of bison indigenous to the North American continent was abrupt, swift, and utterly transformative. In an estimated ten-year span, concentrated mostly in the 1870s, the number of these animals on the Great Plains went from “many millions . . . to ‘near extinction.’”[1] At one point, it was estimated that a mere 1,000 living representatives of the species were left in existence.[2] Today, although commercial enterprises on private lands have raised the bison population to around 500,000,[3] the number of wild free-ranging bison remains meek; roughly 14,500 bison exercise natural movement patterns, and that number is confined to less than one percent of their original range.[4] Because these bison are absent from most of their former range, “their grazing does not influence the grassland-fire or nutrient-cycling regimes, and they rarely create habitat or provide food for other native species” such that these animals do not experience a full suite of natural selection forces as they would have in the wild 200 years ago.[5]

This menagerie of species has led to a genetic disease, brucellosis, being found in roughly thirty to sixty percent of today’s bison, depending on who you ask.[6] The disease has allegedly caused a problem for people who live in their areas. According to the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service,

Brucellosis has caused devastating losses to farmers in the United States over the last century. It has cost the Federal Government, the States, and the livestock industry billions of dollars in direct losses and the cost of efforts to eliminate the disease. Brucellosis causes abortions, infertility, and lowered milk production in cattle and bison and is transmissible to humans as undulant fever. In people, the disease causes severe flu like symptoms that can last for months or years. Treatment in humans is not always successful. Moreover, treatment is not successful in animals.[7]

To ward off the threat of brucellosis transmission to livestock and humans, the Montana state legislature has introduced five bills aimed at ridding the state of its free-ranging bison.[8] This legislation is expressly inclusive of all of both Montana Indian Country and off-Reservation Treaty-protected lands. History repeats itself as non-tribal government once again threatens to take the buffalo from Native Americans, particularly Great Plains Indian Treaty Peoples. Indian leaders from the Fort Peck, Crow, and Fort Belknap Reservations have joined forces with wildlife advocates, sportsmen’s groups, and conservationists to oppose the bills.[9] This article discusses the arguments of both sides, and examines the validity of Montana’s proposed legislation vis-à-vis Indian inherent sovereignty and Treaty rights.

  1. The Indigenous Perspective

For many Native Americans and Canadian First Nations bands, an entire economy, lifestyle, culture, and religion was oriented around the buffalo.[10] When this important aspect of the Native lifeway was taken away, it was not surprising that the new, imposed, non-indigenous systems of economies, lifestyles, and cultures did not work to “assimilate tribal Indians into mainstream culture [or] ‘civilize’ Indians by turning them into farmers.”[11] Quite the opposite. Despite strong growth of reservation economies for some fortunately (re)located reservation economies during the gaming boom of the 1990s, the poverty rate on reservations remains three times as high as that as the United States as a whole, making the Nation’s indigenous population the poorest in the United States.[12]

In the Great Plains region – where the largest concentration of buffalo originally dwelled – it is even worse: “no place so demonstrates the shaky economic state of rural America as the northern Rockies and western Great Plains. Virtually all of the 20 poorest counties in America . . . are on the eastern flank of the Rockies or on the western Great Plains.”[13] The disappearance of the buffalo economy and culture likely had something to do with this. According to the Harvard Project on American Indian Economic Development, “[t]he lesson is quite general across Indian Country . . . , [f]oreign systems . . . that do not fit with a people’s own standards as to how they should self-rule are prime causes of nations in [economic] trouble.”[14]

In the early 1990s this tide began to change. The InterTribal Bison Cooperative (“IBC”) was formed in 1992 by eleven tribes who had buffalo herds, with the idea of “increasing the number of herds on tribal lands.”[15] In January of 1996, the National Wildlife Federation and the IBC signed a memorandum of understanding that formally recognized the common goal of “working to repatriate buffalo to Native American reservations.”[16] It was the first time that a formalized joint effort had ever been established between Native Americans and a national conservation organization.[17] In an effort to revitalize the only economic and cultural system that had worked in that area, tribes had been seeking to “reestablish management of North American bison as one of the premier wildlife species of the West” for decades.[18] The cooperation provided not only a means to “restor[e] bison to those tribal and public land habitats capable of supporting their long-term survival,” but also “to enhance the availability of wild bison to Native Americans for cultural and subsistence uses.”[19]

The IBC currently has 58 member tribes in 19 states, representing 20 million acres in bison grazing lands.[20] The IBC provides a variety of technical services to member tribes. The staff includes a wildlife biologist and a rangeland ecologist, who are employed to ensure that bison relocated to free-ranging areas outside of the Yellowstone National Park are health-certified and brucellosis free.[21] This not only conserves individual bison, but also maintains the genetic integrity of the herd through conservation of bison genes on both tribal and public lands.[22] The IBC also “funnels federal funding to tribes and also distributes surplus bison from Wind Cave and Badlands National Parks,” and focuses on outreach and education.[23] According to Mike Fox Manager of Fort Belknap herd, Council Member for the IBC, and former Interim Director of IBC:

We have been generations without buffalo so we actually have to work on cultural education for some of the younger generations. We sponsor cooking demonstrations because some tribal members are not familiar with the varying meat qualities and want to hunt the large bull, when actually the meat is much better from a two- to three-year-old animal. . . . [the IBC also] works on marketing buffalo meat. Originally, [the IBC] started bringing bison back for use in pow-wows and other traditional uses, but as the herds grew, the cost of keeping them needed to be offset by selling them.[24]

In sum, “[t]he goal of tribes . . . is to restore wild herds [from] descendants of the handful who survived the 19th-century slaughter, and are considered genetically pure.”[25]

  1. The Domestic Livestock Industry Perspective

The strongest objections to bison expansion and restoration efforts come from the domestic livestock industry.[26] The rangeland the bison once roamed is now “dominated by cattle that eat the rich grasses that the bison once consumed.”[27] According to the domestic livestock industry, the free-ranging bison and domestic cattle simply cannot share the lands. “The chief fear expressed is that migrating bison may infect domestic livestock with brucellosis.”[28] States, in furtherance of protecting the domestic livestock industry, absolutely possess “a sovereign interest in managing [their] own natural resources,”[29] including the promulgation of “regulations to eradicate or prevent the spread of [livestock-related] diseases in the furtherance of the general welfare.”[30]

According to the industry, states have an obligation to ensure that bison intermingling with local cattle do not allow the brucellosis disease to spread.[31] These proponents argue that statewide eradication of bison is necessary because “[d]etection of the bacteria in domestic stock could prompt a federally sanctioned quarantine against Montana beef, with a possible rescission of the state’s brucellosis-free status.”[32] In furtherance of these private industry interests, but in derogation of Indian inherent rights and Treaty rights, the Montana state legislature has proposed five bills to eradicate free-ranging bison from the state. More specifically, the various pieces of legislation threaten both on-reservation and off-reservation guaranteed tribal rights concerning buffalo and buffalo habitat.

  1. Analysis

As to those Indian lands known as “Indian country,”[33]Williams v. Lee,[34] a 1958 Supreme Court decision described as “the first case in the modern era of federal Indian law,”[35] laid out the rule applied to tribal/state relations today. In Williams it was held that although the states have at times sought to impose their will upon tribal governments, any such “assertion of power [is] invalid.”[36] Rather, because tribal nations are “‘distinct communit[ies], occupying [their] own territory . . . in which the laws of [the states] can have no force, and which the citizens of [those states] have no right to enter, but with the assent of the [tribes] themselves, or in conformity with treaties, and with the acts of Congress,’”[37] state actions are preempted by inherent tribal sovereignty where Congress has not “expressly granted them the jurisdiction” otherwise.[38] Importantly, the Williams Court held that it was inherent tribal sovereignty – not a federal statute or treaty – that forbid the state’s action.[39] In other words, under Williams, state action is “excluded in all areas impacting tribal institutions and individuals”[40] unless that power is explicitly “taken away from them” by Congress.[41] Known as the “inherent tribal sovereignty doctrine,” this principle of tribal/state relations has been summarized by Robert A. Williams, Jr., as “whatever hasn’t been taken away by Congress, by treaty, or statute remains.”[42]

As discussed above, in the Great Plains and throughout much of the mid-West, an entire economy, lifestyle, culture, and religion was traditionally buffalo-oriented.[43] Undoubtedly, the tribes that originally inhabited these lands had the right to manage, maintain, and hunt bison. Congress has not clearly and unambiguously divested that right. The tribes’ exclusive authority to regulate on-reservation wildlife is thus derived the retained inherent sovereignty over its tribal territory.[44] Indeed, rather than abandon this right, many, if not all, of the Great Plains Tribes explicitly “reserved to the Tribe and its members the unrestricted right to hunt and fish on all ‘unoccupied land’” in their treaties with the United States.[45] Where such a treaty right exists, courts have held, it “imposes a duty upon the State to refrain from” taking action that would “diminish the number of [bison] that would otherwise be available,” even off of the Reservation.[46] The state has an obligation, in other words, to “protect [the tribes’] source of food and commerce” throughout the state, meaning both within Montana Indian Country and beyond; both on and off the Reservation.[47]

There is one exception to this rule, however. A state may regulate or otherwise interfere with a tribe’s right to manage a reserved right if “the specific proposed regulation is both reasonable and necessary for the conservation of [a state’s] resource.”[48] In order to be necessary, “such regulations must be the least restrictive which can be imposed consistent” with assuring that the particular resource is conserved.[49] As the Oregon Court of Appeals noted in State v. Jim[50]:

[T]here are three requirements that must be met before a state has the authority to impose its game regulations . . . . First, the state must show that the regulation is a reasonable and necessary conservation measure. Conservation purposes are narrowly circumscribed, encompassing only those that are necessary for the perpetuation of a species, or necessary to prevent the exercise of the hunting right in a manner that will imperil the continued existence of the resource. . . . A regulation is “reasonable” when the specifically identified conservation measure is appropriate to its purpose and is “necessary” when the purpose is essential to conservation. . . . Second, the state must show that application of the specific regulation to treaty hunters . . . is necessary in the interest of conservation. . . . If alternative means and methods of reasonable and necessary conservation regulation are available, the state cannot lawfully [regulate] . . . . Finally, the regulation must not discriminate against treaty hunters. That is to say, the state may not subordinate the treaty right to some other state objective or policy. . . . When the state seeks to enforce a hunting regulation against treaty Indians in ceded areas, the burden is on the state to establish that its regulation is valid in the light of the foregoing requirements. . . . No regulation . . . can be valid or enforceable unless and until it has been shown reasonable and necessary to conservation as defined by federal law.[51]

In mid-2013, Republican Montana State legislators introduced five bills aimed at reducing the state’s bison population:

  • SB 143, introduced by Sen. John Brenden, establishes a statewide bison hunt; orders Montana officials to kill or remove wild bison that migrate into Montana; outlaws translocation of bison to anywhere in the state except for the National Bison Range; allows landowners to shoot wild bison for any reason on private land.[52]
  • SB 256, introduced by Sen. Eric Moore, makes Montana’s Fish, Wildlife, and Parks Department liable for any damage to private property from wild bison.[53]
  • SB 305, introduced by Sen. Jim Peterson, changes the definition of “wild bison” or “wild buffalo” to mean “a bison that has never been reduced to captivity and has never been owned by a person.”[54]
  • SB 341, introduced by Sen. Jennifer Fielder, establishes criteria for transplanting wildlife, including bison. Among other criteria, the bill would prohibit wildlife translocation if the species could impact livestock grazing.[55]
  • HB 396, introduced by Rep. Mike Lang, gives county commissioners veto power over bison restoration plans within their counties, expressly including on tribal lands and federal public lands. The bill also allows bison to be sold by the Department of Livestock to pay for capturing, testing, quarantining, and vaccinating wild bison.[56] Essentially, the bill gives county commissioners veto power over tribal lands as it relates to bison restoration.

Although veiled as conservation bills that are “needed to protect domestic livestock from contracting brucellosis [for] the sake of public safety,”[57] the bills have the effect of destroying an entire indigenous culture and economy.[58] The right to maintain the bison culture and economy was never divested by the Federal government and was reserved via territorial rights set forth in Indian Treaties with the United States. These Treaties – referred to in the U.S. Constitution as “the supreme Law of the Land”[59] – “exempt the Indians’ preserved rights from like state regulation”[60] and, as discussed above, impose an affirmative obligation on the state to assure that reserved resource is maintained in a manner that gives meaning to the tribes’ reserved right.[61]

In short, SB 143, SB 256, SB 305, SB 341, and HB 396 (“Bison Bills,” collectively) will all be stricken down as impermissibly interfering with tribal reserved right unless the state can “demonstrate that its regulation is a reasonable and necessary conservation measure.”[62] Yet according to the research, “[t]here is no known case of free-ranging bison passing the [brucellosis] microbe to cattle, and reasons to believe it will not happen.”[63] According to Steve Torbit, senior staff scientist at the National Wildlife Federation’s Rocky Mountain Natural Resource Center, an attempt to purge bison is absolutely unjustified considering the thousands of elk that migrate across the Plains each year,[64] and that elk likewise have a rumored propensity to pass microbe to cattle.[65] To the extent that the bills are even remotely related to conservation and public health, there is simply no proof that the bills are “necessary” for that stated purpose.[66]

Nor can the state show that “alternative means and methods of reasonable and necessary conservation” would fail.[67] SB 143, for instance, allows wildlife agents and common citizens the ability “to use any means to remove all bison suspected of carrying disease, a qualification that would implicate all bison.”[68] If brucellosis were truly the issue, the target would be on bison that carry the microbe, not on all bison. The focus on bison “seems even less justified in light of the [IBC’s] standing offer to take the refugee bison, quarantine them, remove any that test positive for brucellosis and use the remainder to restock reservations.”[69]

Indeed, SB 143 “would eliminate any opportunity for Montana’s Native American tribes and indigenous peoples to restore disease-free wild buffalo onto their own tribal lands” – quite the opposite of the stated intent of the Bison Bills.[70] To the extent that the state has even considered alternatives, the state’s dismissive attitude toward tribal rights has not afforded the dialogue necessary to determine what the “alternative means and methods of reasonable and necessary conservation” would be: “Not one sponsor of these anti-bison bills has ever made an attempt to ask tribes their views.”[71]


There is simply no way that the state will meet its burden in showing that the Bison Bills are reasonable and necessary to conservation and/or public safety. First, there is no evidence that the brucellosis microbe is even transferable to domestic cattle. Second, even if it were, the extermination of all of the state’s free-ranging bison is not a remedy that has been narrowly tailored to ensure that the tribes’ right to bison as a source of food and commerce remains in perpetuity.

When asked his rational behind SB 143, Sen. Brenden retorted with a question of his own: “Why do you want to spread this creeping cancer, these woolly tanks, around the state of Montana? . . . Trying to bring back the buffalo in big herds across Montana is like bringing back dinosaurs. And who wants dinosaurs in Montana? I certainly don’t.” Unfortunately for Sen. Brenden, a dislike of dinosaurs does not trump Indian rights to regulate tribal lands in a manner that ensures a healthy bison population, and the state’s obligation to guarantee that the tribal right to bison as both an on- and off-reservation source of food and commerce exists in perpetuity. Montana lawmakers’ bison vendetta, conspired behind closed doors with domestic livestock industry lobbyists, will essentially halt tribal buffalo restoration.

The law simply will not allow these Bison Bills – the State of Montana’s assault on Buffalo Country embodied in the legislation – 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 can be reached at 206.909.3842 or

[1] William H. Rodgers, Jr., NEPA Complements – Endangered Species Act, Envt. L. Indian Country § 1:27 (2012) (quoting Richard White, A New History of the American West 216 (1991)); see also Judith L. McDonald, Bison Restoration in the Great Plains and the Challenge of Their Management, 11 Great Plains Res. 103, 104 (2001) (“Since no scientific surveyor official census was taken of the bison population prior to the late 1800s, attempts to identify their numerical presence are historical conjecture. Estimates of the bison population during their peak period range from 25 million to 75 million”) (citation omitted).

[2] Rodgers, supra note 1, at § 1:27.

[3] Most of these bison are contain cattle genes that resulted from early 1900s commercial cross-breeding experiments. See generally Curtis H. Freese, et al., Second Chance for the Plains Bison, 136 Biological Conservation 175 (2007).

[4] Kent H. Redford, Keith Aune, & Eva Fearn, The Second Recovery of Bison, 3 Wildlife Professional 46, 47 (2009).

[5] Kent H. Redford & Eva Fearn, Ecological Future of Bison in North America: A Report From a Multi-Stakeholder, 2 (Wildlife Conservation Soc., Working Paper No. 30, 2007); Redford, Aune, & Fearn, supra note 4, at 47.

[6] Damien O. Joly & François Messier, Factors Affecting Apparent Prevalence of Tuberculosis and Brucellosis in Wood Bison, 73 J. Animal Ecology 263, 263 (2004) (30 percent); John J. Treanor, P.J. White, & Rick L. Wallen, Balancing Bison Conservation and Risk Management of the Non-Native Disease Brucellosis, in Yellowstone's Wildlife in Transition 226, 229 (P.J. White, ed. 2013) (40-60 percent).

[7] U.S. Department of Agriculture Animal and Plant Health Inspection Service, Brucellosis and Yellowstone Bison 1 (2003), available at

[8] Revise Bison Management, S.B. 143, 2013 Gen. Assem., Reg. Sess. (Mont. 2013); Making FWP Liable for Private Property Damages Caused by Wild Buffalo/Bison, S.B. 256, 2013 Gen. Assem., Reg. Sess. (Mont. 2013); Generally Revise Laws Governing Bison Management in Montana, S.B. 305, 2013 Gen. Assem., Reg. Sess. (Mont. 2013); Establish Criteria for Transplantation or Augmentation of Wildlife, S.B. 341, 2013 Gen. Assem., Reg. Sess. (Mont. 2013); Revise Laws Regarding Translocation of Wild Buffalo/Bison, H.B. 396, 2013 Gen. Assem., Reg. Sess. (Mont. 2013).

[9] John S. Adams, Rally in Helena Calls for Support of Bison, Great Falls Tribune, Mar. 13, 2013, available at

[10] Redford & Fearn, supra note 5, at 13; see also Rally Calls for Bison Support, Great Falls Trib., Mar. 13, 2013, available at 2013 WLNR 7016082 (“[B]ison, or buffalo, are a critical part of the culture, spirituality and identity of all of Montana's Indian tribes.”).

[11] L. Scott Gould, The Consent Paradigm: Tribal Sovereignty at the Millennium, 96 Colum. L. Rev. 809, 828-29 (1996) (citing Indian General Allotment (Dawes) Act, ch. 119, 24 Stat. 388 (1887) (codified as amended in scattered sections of 25 U.S.C.); Oklahoma Tax Comm'n v. Sac and Fox Nation, 113 S. Ct. 1985, 1987 (1993)).

[12] Alan Berube, Concentrated Poverty in America: An Overview, in The Enduring Challenge of Concentrated Poverty in America: Case Studies From Communities Across the U.S., at 8 (David Erickson, et al., eds. 2008).

[13] Judith Basin, Poorest Part of America: Not Here, Surely?, Economist, Dec. 8, 2005, available at

[14] The Harvard Project on American Indian Economic Development, The State of Native Nations: Conditions Under U.S. Policies of Self-Determination 22 (2008).

[15] Redford & Fearn, supra note 5, at 22.

[16] Stephen C. Torbit & Louis LaRose, A Commentary on Bison and Cultural Restoration: Partnership Between the National Wildlife Federation and the InterTribal Bison Cooperative, 11 Great Plains Res. 175, 175 (2001)


[18] James Sanderson & Michael Moulton, Wildlife Issues in a Changing World 189 (2nd ed. 1998).

[19] Torbit & LaRose, supra note 16, at 175.

[20] Redford & Fearn, supra note 5, at 22.

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[21] Charla R. Hollingsworth, The Brucellosis Bacterium: Small but Mighty—An Infectious Animal Disease Decision Case, 27 J. Nat. Resour. Life Sci. Educ. 145, 152 (1998).


[23] Redford & Fearn, supra note 5, at 22.


[25] Jim Robbins, On the Montana Range, Efforts to Restore Bison Meet Resistance, New York Times, Apr. 2, 2013, at A13.

[26] Ironically, brucellosis was “originally introduced into Montana’s wildlife by cattle ranchers.” George Ochenski, Elk Management Proposals are Risky Business, The Missoulian, Nov. 5, 2012, available at

[27] Robbins, supra note 25.

[28] Rodgers, supra note 1, at § 1:27.

[29]Ottawa Tribe of Oklahoma v. Ohio Dept. of Natural Resources, 541 F.Supp.2d 971, 979 (N.D. Ohio 2008).

[30] John Dvorske, et al., Contagious and Infectious Diseases: General Considerations, 3B C.J.S. Animals § 128 (2013); see also Intertribal Bison Co-op. v. Babbitt, 25 F.Supp.2d 1135, 1137 (D. Mont. 1998) (“Montana has the right under its own police powers to protect the health, safety, and welfare of its inhabitants by removing possibly infected . . . bison that migrate into Montana.”) (citing Fund for Animals, Inc. v. Lujan, 794 F.Supp. 1015 (D. Mont. 1991)).

[31] Hollingsworth, supra note 21, at 145.


[33] 18 U.S.C. § 1151.

[34] 358 U.S. 217 (1959).

[35] Bethany R. Berger, Williams v. Lee and the Debate over Indian Equality, 109 Mich. L. Rev. 1463, 1465 (2011); see also Matthew L.M. Fletcher, Swanawgezewog: “The Indian Problem” and the Last Art of Survival, 28 Am. Indian L. Rev. 35, 49 (2004); Charles F. Wilkinson, American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy 1 (1987).

[36] 358 U.S. at 219.

[37]Id. (quoting Worcester v. Georgia, 31 U.S. 515, 561 (1832))

[38]Id. at 211.

[39] However, because the Navajo Nation’s treaty had prohibited all but federal government officials from entering the tribe’s Reservation, preemption by federal statute (i.e. treaty) would have accomplished the same result in many contexts. See Treaty with the Navajo Indians, art. 2, June 1, 1861, 15 Stat. 667.

[40] Berger, supra note 35, at 1516 n.449.

[41]Williams, 358 U.S. at 223.

[42] Robert A. Williams, Jr., Module 8: The Marshall Trilogy and United States v. Winans, Federal Indian Law and Policy for Tribal Leaders Series, available at Or, as put by the court in United States v. Winans, 198 U.S. 371 (1905), federal laws involving Indians are “not a grant of rights to the Indians, but a grant of rights from them” the tribe retaining a “reservation of those [rights] not granted.” Id. at 381; see alsoWinters v. U. S., 207 U.S. 564, 575 (1908) (reiterating the Winans rule that all rights not ceded to the federal government are reserved); Winnemucca Indian Colony, et al. v. United States of America, ex rel. Department of the Interior, No. 11-622 (D. Nev. Sept. 16, 2011) (ECF No. 19) (same).

[43] Redford & Fearn, supra note 5, at 13.

[44]Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137 (1982); Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 152, reh'g denied, 448 U.S. 911 (1980).

[45]Crow Tribe of Indians v. Repsis, 73 F.3d 982, 986 (10th Cir. 1995) (quoting Treaty with the Crows, 15 Stat. 649, 650 (1868)). The terms of a treaty must be “carried out, so far as possible, in accordance with the meaning they were understood to have by the tribal representatives at the council and in a spirit which generously recognizes the full obligation of this nation to protect the interests of” the tribe. State v. Satiacum, 314 P.2d 400, 406 (Wash. 1957).

[46]U.S. v. Washington, No. 70-9213, 2013 WL 1334391, at *1 (W.D. Wash. Mar. 29, 2013); see also id. at *24 (“The promise made to the Tribes [to] protect their source of food and commerce was crucial in obtaining their assent to the Treaties’ provisions.”) (citing State of Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 677 (1979)). In Ward v. Race Horse it was held that Congress, in admitting Wyoming to the Union on equal footing with the original states, effectively abrogated the Indian treaty hunting rights of certain treaty Indians with reserved hunting rights. 163 U.S. 504 (1896). In Minnesota v. Mille Lacs, 526 U.S. 172 (1999), Race Horse was, arguably, overruled. As the Washington State Supreme Court noted in State v. Buchanan:

[T]he United States Supreme Court effectively overruled Race Horse in Minnesota v. Mille Lacs, [526 U.S. 172] (Rehnquist, C.J., dissenting) (noting the majority’s “apparent overruling sub silentio” of Race Horse). The Supreme Court rejected use of the equal footing language to find an abrogation of Indian treaty rights, holding “treaty rights are not impliedly terminated upon statehood.” [Id. at 174]. This decision is consistent with the decisions over the past 100 years, since Race Horse was decided, in which the Supreme Court has clarified and refined the law governing interpretation and abrogation of Indian treaty hunting and fishing rights. In contrast to the language in Race Horse, where the Court discussed the treaty’s “grant” of rights to the Indians, the Supreme Court now views the grant as one from the Indians, with a reservation of rights not granted.

 978 P.2d 1070, 1083 (Wash. 1999).

[47]U.S. v. Washington, 2013 WL 1334391, at *1.

[48]U.S. v. Washington, 384 F.Supp. 312, 345 (D. Wash. 1974); see also Sohappy v. Smith, 529 F.2d 570, 573 (9th Cir. 1976) (“[T]he particular regulation [must be] (1) reasonable, and (2) necessary to conserve . . . resources, and (3) did not discriminate against these Indians.”). 

[49]U.S. v. Washington, 384 F.Supp. at 345. This rule does not apply to trump, however, the U.N. Declaration on the Rights of Indigenous Peoples, which guarantees the right to “free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them,” the right not to be “subjected to forced assimilation or destruction of their culture,” and the prevention of “[a]ny action which has the aim or effect of dispossessing them of their lands, territories or resources.” G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007). These statements affirming, reiterating, and crystalizing customary international law are likely enforceable in the federal courts. See generally Gabriel S. Galanda, Deploying UNDRIP In the Courts, Indian Country Today, Feb. 29, 2012, at 9.

[50]State v. Jim, 725 P.2d 372 (Or. Ct. App. 1986).

[51]Id. at 374-75 (quotation and citation omitted).

[52] S.B. 143, 2013 Gen. Assem., Reg. Sess. (Mont. 2013).

[53] Making FWP Liable for Private Property Damages Caused by Wild Buffalo/Bison, S.B. 256, 2013 Gen. Assem., Reg. Sess. (Mont. 2013).

[54] Generally Revise Laws Governing Bison Management in Montana, S.B. 305, 2013 Gen. Assem., Reg. Sess. (Mont. 2013).

[55] Establish Criteria for Transplantation or Augmentation of Wildlife, S.B. 341, 2013 Gen. Assem., Reg. Sess. (Mont. 2013).

[56] Revise Laws Regarding Translocation of Wild Buffalo/Bison, H.B. 396, 2013 Gen. Assem., Reg. Sess. (Mont. 2013).

[57] Nate Schweber, Two Bills Propose Zero Tolerance For Bison, New York Times, Apr. 19, 2013, available at

[58] There is also some indication that the bills are the result of “a competition for grass.” Robbins, supra note 25. Apparently, Montanan cattlemen make a great part of their living off subsidized grazing. While the federal government charges $1.38 to graze a cow and calf for a month, private landowners charge $22. According to some analysts, “Buffalo are a large animal that could become active competition for cheap grazing on federal land.” Id. Again, this is not a conservation interest. 

[59] U.S. Const., Art. VI, cl. 2.

[60]Antoine v. Washington, 420 U.S. 194, 206 (1975).

[61]U.S. v. Washington, 384 F.Supp. at 345. 

[62]Antoine, 420 U.S. at 207 (citing Washington Game Dept. v. Puyallup Tribe, 414 U.S. 44 (1973)).

[63] Rodgers, supra note 1, at § 1:27; see also Robert B. Keiter & Peter H. Froelicher, Bison, Brucellosis, and Law in the Greater Yellowstone Ecosystem, 28 Land & Water L. Rev. 1, 3 (1993) (noting that “there is no documented evidence that bison have ever passed brucellosis to cattle on the open range”). Researchers at Texas A&M University have demonstrated that bison are capable of transmitting the bacteria to disease-free cattle in an extremely controlled setting. See Donald S. Davis., et al., Brucella Abortus in Captive Bison, 26 J. Wildlife Diseases 360 (1990). The Texas A&M experiment has been criticized, however, as “an example of poor scientific method”:

[R]esearchers confined cattle and bison in a small corral while regularly over-dosing bison with the bacteria to ensure high infection levels. The confined bison were not only exposed to the bacteria in an unnatural way, but were forced into an artificially close relationship with cattle. Bison have a strong herding instinct, and rather than leaving the herd at calving time, they remain an active part of it. This increase[d] the risk of bacterial contamination . . . .

Hollingsworth, supra note 21, at 146 (citation omitted).

[64] Rodgers, supra note 1, at § 1:27 n. 145.

[65] Ochenski, supra note 26.

[66] State officials, too, appear to recognize that the bills are not necessary conservation measures. Sen. John Brenden, sponsor of SB 143, has publicly stated his reasons for pushing the bill: “I don’t think we can have free roaming bison in today’s modern society. That’s the bottom line.” Rally Calls for Bison Support, supra note 10.

[67]U.S. v. Washington, 384 F.Supp. 312, 342 (W.D. Wash 1974)

[68] Laura Lundquist, Two Bills Seek to Limit Bison Movement, Bozeman Daily Chron., Apr. 5, 2013, available at 2013 WLNR 8352087.

[69] Rodgers, supra note 1, at § 1:27 n.145.

[70] Beth Madden, SB 143 An Assault on State's Bison, Bozeman Daily Chron., Apr. 12, 2013, available at 2013 WLNR 9047518 (emphasis added).

[71] Laura Lundquist, Tribes Request Bison Summit, Governor Vetoes, Bozeman Daily Chron., Apr. 18, 2013, available at 2013 WLNR 9513489. Again, to the extent that the bill divests the tribes of their right to consultation, it is likely in violation of customary international law, and, thus, a federal common law cause of action will lie as well. See e.g. U.S. v. Dire, 680 F.3d 446 (4th Cir. 2012) (federal common law cause of action under customary international law).