Bison rally

Jimmy St. Goddard, a Blackfeet tribe leader, cites 1855 treaty rights while describing the importance of bison to native people. St. Goddard was part of a rally Friday outside the George and Jane Dennison Theater at the University of Montana prior to a Montana Supreme Court hearing on bison transfers to Fort Belknap.

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MISSOULA – The Montana Supreme Court will decide whether a district judge had the authority to block the transfer of Yellowstone bison between Montana tribes.

In Missoula on Friday, attorneys for the Department of Fish, Wildlife and Parks, the National Wildlife Federation and Defenders of Wildlife tried to convince six Supreme Court justices that a Phillips County judge went too far in stopping the transfer of Yellowstone bison between the Fort Peck and Fort Belknap reservations.

Hundreds gathered in the University of Montana’s George Dennison Theater to observe the hearing, one of the few the Supreme Court takes on the road each spring.

Tribe spokesmen took advantage of the event and held a rally outside the theater prior to the hearing. They emphasized their sovereign-nation status, treaty rights to hunt and keep bison, and the religious and nutritional importance of bison for native people.

During an April 2012 hearing, Phillips County District Judge John McKeon sided with the Citizens for Balanced Use and granted an injunction that stopped a shipment of bison from Fort Peck to Fort Belknap. Part of the case questioned the exclusion of the tribes.

FWP attorney Rebecca Jakes Dockter said the first problem was that McKeon misapplied the law created in 2011 by Senate Bill 212. The law regulates FWP’s transfer of bison to state or private land in Montana, which Jakes Dockter said doesn’t include tribal land.

The court often consults legislative testimony to interpret the intent of a law when questions arise. So Jakes Dockter said the 2011 comments of Rep. Austin Knudsen, R-Culbertson, who said SB 212 would have no effect on the tribes’ ability to receive bison, should show that the law was not intended to apply to tribal land.

The state has no jurisdiction over the 800-acre holding pasture on the Fort Belknap Reservation, Jakes Dockter said.

CBU attorney Chad Adams disagreed, saying tribal land was part of Montana.

When Justice Mike Wheat asked whether it counted as private or public, Adams said it counted as both because the holding pasture was public but the 22,000 acres the tribe planned to use eventually included private land on the reservation.

Chief Justice Mike McGrath reminded Adams that the case was limited to the injunction on the transfer of bison to the holding pasture only.

“That’s not the question before the court. That’s speculating what might happen three years down the road,” McGrath said. “You can prove your case at a later time.”

National Wildlife Federation attorney Tim Preso reminded the court that tribes are sovereign entities with jurisdiction over their own land. The Legislature did not intend for the law to reach inside a reservation, Preso said.

The other aspect of the injunction challenge was Procedure Rule 19, which defines which parties must be included in court hearings or actions.

The Fort Peck tribes hadn’t been represented in the case, but McKeon issued the injunction anyway, saying they weren’t adversely affected so they weren’t “indispensible.”

Adams agreed. He said if the court wasn’t allowed to rule if the tribes didn’t participate, that took away citizens’ recourse.

FWP attorney Zach Zipfel argued the Fort Peck tribes were affected because the injunction meant they had to care for 30 bison intended for the Fort Belknap Reservation.

In March 2012, FWP transferred 68 disease-free wild bison from a quarantine facility to Fort Peck.

Preso said nothing stopped the tribes from exchanging bison as two sovereign entities. But when the Fort Peck tribes signed a memorandum of understanding with FWP, they made a commitment to work with the state, Preso said.

“There’s a lot of good faith at work here,” Preso said. “It’s not a case of tribes heedlessly rushing forward, disregarding the concerns of the private property owners.”

After the hearing, council member Andrew Werk Jr. of the Fort Belknap Reservation told the, Chronicle that the tribes had considered going ahead with the bison transfer but decided against it.

Werk said he was pleased with the way Friday’s hearing had gone, although he was disgusted that Adams would suggest that sovereignty issues should be addressed without the tribes present.

The Supreme Court will take the case under advisement. If the court dismisses the injuction, Werk said the bison transfer would move ahead.

Laura Lundquist can be reached at 582-2638 or

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