MOIESE — Two weeks ago, the Confederated Salish and Kootenai Tribes met with Bill West, the Project Leader of the National Bison Range Complex, and Lyle Laverty, the United State’s Assistant Secretary of the Interior, to discuss reimplementation of an annual funding agreement that allows the Tribes increased responsibilities at the National Bison Range.
The meetings, held over two days in Missoula, were closed to the public and the media.
At issue is management of almost 19,000 acres of land under the control of the Interior Department. At odds over that management are the historic land managers, the U.S. Fish and Wildlife Service, and the Confederated Salish and Kootenai Tribes, within whose reservation boundaries the National Bison Range lies.
If conservationists’ fears are warranted, the management of and accessibility to other public lands is riding the wake of this decision.
The National Bison Range was established in 1908, after the American Bison Society convinced the U.S. government to set aside land to preserve the last of the great buffalo herds that once roamed the country. It was the first time the U.S. Congress appropriated tax dollars to purchase land expressly for wildlife management.
Land was selected on the Flathead Reservation, according to Germaine White, CSKT Information and Education Specialist, because it best suited the needs of the large herbivores. The area around Moiese was selected for its lack of settlement, coupled with proximity to a railroad, needed to ship in the animals from Canada.
White said the land was bought, but the money was held in trust by the government, and did not benefit the Tribes.
“At that time, the tribe was in a custodial relationship with the federal government,” White said. “So the money just transferred within the federal government.”
After a lawsuit in 1971, the Tribes were paid directly for the land. At that time, White said, the Tribes were “awarded fair market value” for the acreage.
For the last 100 years, the U.S. Fish and Wildlife Service has managed that land, to the benefit of the bison and other wildlife as well as the native plants that blanket the range.
It is rightly called the crown jewel of the National Refuge System. Within the boundaries of the National Bison Range are native prairie, forests, wetlands and streams that provide habitat for elk, deer, pronghorn, bighorn sheep, black bear, coyote and ground squirrels, as well as 200 species of birds. The 200-350 bison seem almost incidental when you consider the eagles, bluebirds, ducks, insects and other species that also make the refuge home.
The refuge has been so well taken care of, in fact, that these species thrive, and bison are annually culled from the growing herd to keep the range intact.
In recent years, the U.S. government’s sole management of the Range has been challenged.
At a meeting in December, the CSKT presented their vision for management of the National Bison Range. Tribal attorney Brian Upton said that the Tribes’ interest in managing the National Bison Range was brought about by the 1994 Tribal Self-Governance Act, which allows federally recognized tribes to contract with the U.S. government to manage activities on federally held lands. Upton said that through the law, “If a tribe can demonstrate a cultural, historic and geographical connection to an activity, Congress allows tribes to contract some Interior department programs.”
Under such contracts, known as Annual Funding Agreements, tribes receive a portion of an agency’s operating budget in exchange for carrying out specific duties.
“The CSKT wanted management of the Bison Range on these grounds,” Upton said. But West said that is a fundamental misunderstanding of the 1994 law. “Management of the refuge is still federal,” West said.
In 2003, negotiations began between the CSKT and the U.S. Fish and Wildlife Service addressing the National Bison Range.
In 2005, an annual funding agreement was established.
At the time West said, 140 of the 300 total managers in the National Wildlife Refuge System reviewed the AFA and signed a letter stating the parameters were unworkable. Nonetheless, the AFA was put in place.
The Tribes contracted for a number of refuge activities, including the care and feeding of penned wild bison. As one source explained, “There was a difference in philosophy between the tribes and the feds” regarding how, and how much, the bison should be fed.
This disagreement, and how the activity was carried out, led to the repeal of the funding agreement by USFWS, and the removal of tribally managed employees from the refuge.
Since that time, the Tribes have been interested in renegotiating the AFA, and regaining a stake in the refuge. But that troubles some, who feel the underlying protocol needs to be addressed first, before a contract is granted.
“It would be irresponsible to enter into a contract or agreement with any party that does not provide a high level of accountability, transparency and economy,” said Evan Hirsche, president of the National Wildlife Refuge Association.
Hirsche said “Our fundamental concern is that we don’t have a Fish and Wildlife Service AFA policy in place. With an AFA policy in place, some of this would have been avoided.”
But even more may be at stake.
Hirsche, like many others, believes any new AFA established at the National Bison Range will be precedent setting, and used as a guide to forge further such agreements at other refuges and National Parks throughout the country.
It’s not an unfounded fear. Published in the Federal Register, the government’s official documentation of its actions, is a list of other public lands available for tribal management. The list includes many national parks and national refuges. The register notes that “any non-Bureau of Indian Affairs program, service, function or activity that is administered by the Department of the Interior, that is otherwise available to Indian tribes or Indians, can be administered by a tribal government through a self-governance funding agreement.”
Passage of a new bill, HR 3994, which generally spells out the parameters for tribal-federal AFAs, would further strengthen the case for tribal management of public lands. HR 3994 “would narrow the grounds to disallow tribal people to manage federal lands in the Interior Department,” Upton said.
For the groups and individuals against such agreements, the biggest issue is the intent of whoever controls the land. Whoever that is, also controls the future of the species that occupy those lands, and for whom those lands are held in trust.
Currently, the US Fish and Wildlife Service manages all National Wildlife Refuge lands in the United States for habitat improvement and the betterment of targeted species. These lands are open to all Americans, regardless of race or heritage.
There is a fear by opponents to a new AFA that if national refuge lands go under the control of a specific tribe, that tribe will shut out non-tribal visitors and researchers, just as they are legally able to do on tribally-owned lands.
Helen Yost, a Natural Resources Conservation doctoral student who has spent years following federal land laws, feels the impacts would be great. Because tribal nations are sovereign governments, Yost said giving tribes control of federal land is akin to handing over U.S. territory to a foreign government.
“You can’t do that,” she commented. “It’s the people’s land. You can’t just give our public land to another country.”
Upton feels differently. “Previous federal policies were not beneficial to tribal members or the tribes,” Upton said.
To some, the Tribes’ interest in managing federal lands is premature.
“Self governance works because it tasks the tribes with delivering services to Indian people,” said one concerned individual.
Through an AFA at the Bison Range, the Tribes will “be tasked with delivering a service to all Americans. But all Americans don’t elect the tribal council. There’s no way for the American people to have feedback or influence over the tribal management.”
“It would be wonderful if we could be allies and not adversarial,” West said with his characteristic hopefulness about the topic.
But it is hard for some to feel that way, because of the closed negotiations. Because tribes are sovereign, any negotiations between them and federal representatives are considered government-to-government negotiations, and can be legally closed to the public.
That doesn’t sit well with Susan Campbell Reneau. Reneau, who fronts the Blue Goose Alliance, an umbrella group of hunters and conservationists based in Missoula, believes the people’s right to know what is happening with their public lands trumps any closed door statute. Her beliefs couldn’t turn the latch at this month’s meetings, however, and Reneau sat quietly in the hall for the full two days of the hearing.
“All we want is the right to quietly observe,” she said.
“Sportsmen that contribute millions of dollars a year to national wildlife refuges through the purchase of the federal duck stamp and the taxation on hunting and fishing equipment through the Dingell-Johnson Act and the Pittman-Robertson Act are especially concerned they are excluded from the meetings,” Reneau said in a message to the Alliance.
“Even though you and I as taxpayers paid for all the national wildlife refuges and national parks, we the people are excluded from listening,” she added.
Reneau, who has long been a watchdog of federal lands policy, was particularly concerned by the fact that the FWS was not scheduled to have any legal representation at the pre-negotiation meetings. The Tribes, she said, were. “After an outcry from conservation groups and individuals on Thursday and Friday of last week, the Department of the Interior gave permission for the FWS to have legal council at the meeting,” Reneau said. “Prior to the outcry, the FWS was not to be represented by legal council.” Despite further urgings from the group, the proceedings were not recorded or filmed.
West would like to see a less confrontational approach to the negotiations. He understands the Tribes’ desire to expand their sovereignty within the reservation boundaries.
“How do you meld the cultural attachment to the land,” he pondered, “but not replace everything that America has done that is good about land management?”
“It would be wonderful if we could be allies and not adversarial,” West said. West has kept vacant positions on the Range unfilled in hopes a new agreement with the Tribes could be worked out to everyone’s satisfaction. Still, he questions wording of some documents. “All other public agencies, according to the Indian Self-determination Act, are referred to as non-BIA programs. But those programs serve all of us, Indian and non-Indian alike.”
Concerns like this are the heart of the resistance to a swiftly-formulated AFA by the National Wildlife Refuge Association.
In a letter sent just prior to the recent pre-negotiation session, the NWRA urged Assistant Secretary Laverty to construct and publish a draft Fish and Wildlife Service AFA protocol. Doing so would ensure the public’s right to comment, Hirsche said, as well as “ensure such agreements advance the mission and purposes of the refuge” in question and the refuge system as a whole.
Press releases from the CSKT both before and after the two-day session do state specifically the National Bison Range will remain under Federal control, as part of the National Wildlife Refuge System and guided by the Fish and Wildlife Services manager.
In a release dated Dec. 7, 2007, the Tribes state “New orders from the Interior Department spell out how negotiations will take place between FWS and CSKT in establishing a new contracting agreement under the Tribal Self-Governance Act. … The directions reiterate that the National Bison Range will remain a federally owned and administered National Wildlife Refuge, which will be managed in compliance with federal laws and regulations.”
From the joint FWS-CSKT press release issued Jan. 17, 2008, the statement was less strong. “Under an AFA, the National Bison Range would remain a national wildlife refuge administered by the Service,” it said.
The meetings in Missoula, Pablo and Denver are aimed at building trust, and that trust must be proven. “You can’t rebuild a relationship in two days,” West mentioned.
Still, it seems the actors are ready to take the stage.
“I don’t think anybody’s looking back,” said Upton.
And, said Laverty, “Folks are ready top roll up their sleeves and go to work.”
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