The Assiniboine and Sioux people survived the 19th century despite Westward expansion, and the bison survived as well, but only now — after 130 years — have the two been reunited on ancestral lands, a lawyer argued Friday before the Montana Supreme Court.
The state’s high court convened at the University of Montana on Friday, where it heard arguments before a crowd of several hundred people on the right of tribes to keep and transport wild bison on reservation land, even when doing so may impact surrounding interests.
A team of lawyers representing the appellants in the case, including Montana Fish, Wildlife and Parks, the Defenders of Wildlife and the National Wildlife Federation, argued that a judge erred in blocking the transport of bison from the Fort Peck Reservation to the Fort Belknap Reservation.
But Chad Adams, representing Citizens for Balanced Use, argued otherwise, saying tribal lands are considered both public and private lands in Montana — and the 2011 Montana Legislature restricted the transport and release of wild bison on those lands.
Several justices pressed him on the issue, asking for clarification.
“Is it your position that statute (Senate Bill 212) includes tribal land?” asked Justice Brian Morris. “Which one of those — public or private land — is tribal land? Is it private land or is it public land?”
Adams said both, leading Justice Beth Baker to ask Adams if the Legislature must expressly exclude “tribal” whenever it refers to public or private land while drafting law.
“The U.S. Supreme Court in Nevada v. Hicks suggested that ordinarily, tribal reservation land is included as part of the territory of the state,” Adams said. “When the Legislature was putting this together — saying public and private land — the common meaning of that word, to me, is all the land in the state of Montana.”
However, Tim Preso, representing Defenders of Wildlife and the National Wildlife Federation, told the court that the Legislature made no reference to tribal lands when writing the law — and intentionally so.
He suggested that lawmakers didn’t intend to interfere with tribal actions relating to wildlife that’s restricted to sovereign nations, including free-roaming bison on reservations.
“If the Legislature had intended to address those complicated issues, it would not have done it by stealth,” Preso said. “There would be something apparent on the face of the statute that would give us some indication of what the Legislature meant for the statute to apply. There’s not one word.”
The case stems back to 2011, when FWP approved a plan to transport genetically pure wild bison from a holding pen outside Yellowstone National Park to the Fort Peck and Fort Belknap Indian reservations.
Citizens for Balanced Use challenged the decision in 2012. But the bison were transferred to the Fort Peck Reservation before the group asked for a restraining order, to stop any further transfers until the case could be heard.
That May, the 17th Judicial District Court sided with the group and issued an order preventing FWP from moving wild bison from Fort Peck to Fort Belknap.
In granting the injunction, the court ruled that FWP needed to create a better plan to manage the bison. Defenders of Wildlife and the National Wildlife Federation intervened in the case. FWP later joined their appeal.
The three groups argued Friday that the district court erred in issuing the injunction and blocking the transfer of bison between tribes. They believe Senate Bill 212, which regulates the actions of FWP when moving bison, doesn’t apply to moving bison to tribal lands, since the animals would be located on a reservation.
While other arguments surrounding the legislation were at issue Friday, much of the hearing focused on the definition of public and private land as it pertains to bison management, and whether that includes tribal land.
“Statute does not specifically address releasing, transplanting or allowing bison on tribal lands within the interior boundaries of a reservation,” said Maylinn Smith, an associate professor in the UM School of Law. “Whether the statute intends for tribal lands to be considered private or public in Montana for purposes of managing the translocation of wild bison is at issue in this case.”
During the hearing, Chief Justice Mike McGrath asked why tribes hadn’t already transferred the bison between reservations. Preso said the tribes signed a memorandum of understanding with FWP, in which they agreed to work with the state on the transfer of animals between locations.
Under the understanding, the tribes also made a commitment to hold the bison at Fort Peck until the conditions were in place for their transfer to Fort Belknap. He called it a good-faith effort that shows sincerity on behalf of the tribes and the state.
“This does not present a picture of agencies and tribes heedlessly rushing forward, disregarding the concerns of the private property owners,” Preso told the court.
McGrath later told Adams that the Yellowstone bison had been tested multiple times and certified as being free of brucellosis. He asked Adams if his party contested that fact, and if they had any reason to believe the animals held a latent infection.
Adams said no, but suggested it was FWP, not the plaintiffs, who determine what steps must be taken to prevent the transmission of disease from bison.
“Scientists and experts consider these bison still under quarantine through 2017,” Adams said. “The plaintiffs didn’t come up with that methodology. That was FWP in conjunction with the Interagency Bison Management Plan. And that period hasn’t run.”
Adams also suggested the tribes may not effectively fence the bison and contain them to tribal lands. He said the guarantees covered by the memorandum of understanding were not reliable, since the tribes may not adhere to their obligations.
If tribes failed to meet their end of the understanding, Adams argued, there was no enforcement mechanism in place to hold them accountable.
During final rebuttal, Justice Jim Rice asked Preso which court would hold jurisdiction in the event the tribes failed to manage their free-roaming bison.
Preso said it wasn’t clear, citing issues with tribal sovereignty.
“What is clear, when we’re engaged in agreements between sovereigns, we rely on the good faith of the parties as to each other,” he said. “The tribe clearly has a substantial amount to gain under the performance of this memorandum of understanding.”