MOIESE – It’s probably safe to say no one saw this coming.
Not the U.S. Fish and Wildlife Service employees who manage the 108-year-old National Bison Range as part of the National Wildlife Refuge System. Not the Confederated Salish and Kootenai Tribes, whose attempts over the past 22 years to partner with FWS to run a refuge located on land that was originally reserved for the tribes, and started with animals they helped save from extinction, have always been thwarted thus far.
On Feb. 5, FWS officials from the Mountain-Prairie regional headquarters in Denver approached CSKT Chairman Vernon Finley with a question.
Would the tribes be interested in entering into discussions about the possibility of the federal agency backing legislation to transfer the Bison Range to CSKT?
Such legislation, which would require the approval of Congress, would place the refuge’s 18,766 acres in trust for the tribes, and leave it to them to manage and operate. The Fish and Wildlife Service’s role at the Bison Range would end, as would the Bison Range’s place in the National Wildlife Refuge System.
Less than 10 years ago, the same agency was locking tribal employees out of the Bison Range and requiring them to turn in their gear as armed federal agents stood guard. That came after the first attempt for the tribes and FWS to pair up at the Bison Range under an annual funding agreement turned into a bitter feud between CSKT and the federal agency, with increasingly heated accusations and exchanges flying from both sides.
Five years ago, the plug was pulled on a second agreement that appeared to be working just fine, when a federal judge ruled an environmental assessment was necessary before an agreement could be entered into.
That assessment has since been completed, but a third agreement has never been reached.
Everything about tribal involvement at the Bison Range seemed to be in limbo until the Feb. 5 surprise put it on an entirely new track.
Martha Williams, an assistant professor at the Alexander Blewett III School of Law at the University of Montana, says legislation leading to a transfer would be groundbreaking.
“It’s historic, and a long time coming,” says Williams, who teaches public land and natural resources law. “It signals the Department of Interior (which oversees the Fish and Wildlife Service) may be willing to look at its trust responsibilities in a new light.”
The federal government can ensure that the Bison Range continues as a wildlife refuge open to the public, Williams says.
“They can still preserve the concept of the Bison Range and its underlying purpose,” Williams says of the Department of Interior. “I don’t think the tribes would want to do it differently anyway, but there are mechanisms the Department of Interior, as trustee, can use to make sure the purposes of the Bison Range carry through in a transfer. You can attach those strings.”
Many other questions, including who would pay the costs of managing and maintaining the Bison Range have not yet been answered. FWS currently budgets $737,000 a year for doing so, according to Anna Munoz, FWS assistant director for external affairs.
“We’ve barely just started the discussions,” Munoz says. “There is a lot to be worked out. It would be premature to discuss what might happen. We’re just at the start of this process.”
Munoz was able to confirm what FWS employees at the Bison Range say they were told on the afternoon of Feb. 5, when three officials from Denver visited the refuge to inform them of the discussion they had with CSKT earlier in the day.
The proposed transfer would involve the Bison Range only, Munoz said. The refuge is the largest single entity of what FWS calls the National Bison Range Complex, which includes three more national wildlife refuges and 15 waterfowl production areas located both on and off the Flathead Indian Reservation.
All other parts of the complex, including two refuges, Ninepipe and Pablo – which, interestingly, are located on tribal, not public, land – would remain under the management of the Fish and Wildlife Service.
Noreen Walsh, director of the FWS Mountain-Prairie Region, told the Bison Range employees they would “remain valued employees of the Service, regardless of the outcome of these discussions,” Walsh noted in an email to FWS employees.
How, or where, are questions that probably won’t be answered for some time, depending on how the talks go. Munoz declined to answer another question this week about staffing at the refuge as talks move forward.
FWS has appeared reluctant to fill all openings at the Bison Range during the period that funding agreements with the tribes have come and gone, given that CSKT employees fill several of the jobs when agreements are in place.
Now that FWS is actively discussing the potential transfer of the range, what will happen if any of the handful of FWS employees left at the Bison Range leave or retire during the process?
“That is a personnel issue, and we aren’t going to comment on personnel issues,” Munoz told the Missoulian.
Williams gave Walsh kudos for speaking to the Bison Range employees, and informing all FWS employees in the Mountain-Prairie region about the proposal in an email, on the same day the tribes were approached about the possibility of a transfer.
While FWS never made a public announcement that it had approached CSKT about turning the Bison Range over to the tribes, it certainly had to know the news would leak quickly. The Missoulian had obtained a copy of Walsh’s email within a few hours.
By Monday, Public Employees for Environmental Responsibility – which has long opposed any tribal involvement at the Bison Range, and filed the lawsuit that undid the most recent annual funding agreement – had posted the emails from both Walsh and National Refuge System Chief Cynthia Martinez on the transfer.
“Being transparent in that conversation from the beginning was the right thing to do,” Williams said. “I commend Noreen Walsh for that.”
Walsh visited the Bison Range on the afternoon of Feb. 5, along with assistant regional director of refuges Will Meeks, and Mike Blenden, refuge supervisor for Montana, Wyoming and Utah, and spoke to FWS employees.
One thing most everyone agrees on: No one has any idea how long it would take, if a bill to transfer the Bison Range to the tribes is introduced, for the legislation to work its way through Congress.
“It’s not going to happen overnight,” Williams says. “And if it gets to Congress, are there any guarantees? My heavens, no. I imagine there will still be a public process the Fish and Wildlife Service will go through.”
Montana’s congressional delegation appeared to be learning of the proposal about the same time the public was. The Missoulian reached out to all three members for their reactions during the week.
“For hundreds of generations, the Salish and Kootenai Tribes have been excellent stewards of the land, wildlife and resources in the Mission Valley,” U.S. Sen. Jon Tester, D-Mont., said in a prepared statement. “As these discussions continue, I look forward to working with stakeholders on the ground to strike a fair agreement that works for everyone, promotes tribal sovereignty and maintains public access to the area.”
Alee Lockman, communications director for Sen. Steve Daines, R-Mont., said Daines “welcomes feedback from tribal members and area residents on this issue. He will stay in close communication with CSKT leaders, local elected officials and folks in the surrounding communities as this discussion continues.”
And Heather Swift, communications director for Rep. Ryan Zinke, R-Mont., said Zinke would be meeting with CSKT officials during the week, and members of his staff will meet with FWS officials later this month to go over details of the proposal.
If anyone, by the way, wondered how Chairman Finley and CSKT responded to the question of whether they would be interested in further investigating a transfer, their answer was yes.
“We are pleased by the U.S. Fish and Wildlife Service's proposal to restore the National Bison Range lands to the tribes for continued bison management and continued public access,” Finley said. “It makes historical and managerial sense to return these responsibilities to the original stewards of the reservation bison herd.”
Today’s herd descends from four bison brought to Dixon from eastern Montana in 1870 by a local Indian who was worried the species was being hunted to extinction. Those animals became the start of what would be known as the Pablo-Allard herd, much of which was used to start the Bison Range herd.
Finley noted that in a transfer, the land title would continue to be held by the federal government, but in trust for the tribes.
“This shows the confidence that the Service has in the tribes' management record, and we believe it is the best solution to a highly unique situation,” Finley said.
It is unique, Williams says, and not comparable to attempts by some to transfer federal lands to states.
“The specifics of the Bison Range are very different,” says Williams, co-director of the law school’s Land Use and Natural Resources Clinic. “It’s part of those lands CSKT reserved when it entered into the Treaty of Hellgate.”
The treaty was signed in 1855. The Bison Range was established in 1908, two years before the 1904 Flathead Allotment Act opened the reservation to homesteaders in 1910.
“The Allotment Act really cut up the Flathead Reservation, and led to the federal government carving out the Bison Range,” Williams says.
Since then, the Indian Reorganization Act (1934), the Indian Self-Determination Act (1975) and the Indian Self-Governance Act (1994) have all given tribes more control over Native American lives and lands.
The latter act gave the Confederated Salish and Kootenai Tribes the right to seek the annual funding agreements and partner with FWS to manage and operate the Bison Range.
The transfer of federal lands to Indian tribes has precedent in the past 15 years.
Williams says the National Park Service has done so at least twice, including 2000, when Congress approved the Timbisha Shoshone Homeland Act, which returned 7,500 acres in Death Valley National Park to the Timbisha Shoshone Tribe.
However, a proposal to create the nation’s first tribal national park out of part of Badlands National Park in South Dakota has gotten nowhere in 10 years. And it has led to acrimony between the National Park Service and the Oglala Sioux Tribe.
Munoz says the Fish and Wildlife Service has transferred federal land to a tribe, too. In 2002, it transferred a New Mexico fish hatchery the agency had closed two years earlier to the Mescalero Tribe.
The emails to FWS personnel from Walsh and Martinez cited several reasons the agency suggested a possible transfer of the Bison Range to CSKT.
They pointed to the “elusive” nature of workable annual funding agreements with the tribes that can survive both on the ground and in the courts. They mentioned a desire to support the principles of Indian self-determination, and a need for the agency to focus on “landscape-scale conservation” efforts.
And they noted that the Bison Range was established at a time when it was questionable whether the over-hunted species would even survive. Its primary purposes was to help the bison avoid extinction, and that’s been done, Walsh and Martinez said.
FWS employees who want the Bison Range to remain part of the National Wildlife Refuge System will tell you the agency can hang a “Mission Accomplished” banner up if it wants, but bison are a far cry from the only resource being managed at the refuge.
It is also home to elk, mule and whitetail deer, pronghorn antelope, bighorn sheep, black bears, coyotes, mountain lions, muskrats, rattlesnakes, mountain cottontails, more than 200 species of birds, and native plants and grasses.
It should come as no surprise that FWS employees aren’t anxious to let the National Bison Range go, or that the Confederated Salish and Kootenai Tribes are excited about the possibility of getting it back.
The only surprise is that the Fish and Wildlife Service suggested it.
“I don’t think you can overplay what a really big deal this is,” Williams says.