We defenders of the NBR often find ourselves faced with potential supporters who have listened to misleading or false statements regarding the National Bison Range. These include statements such as “the tribes never agreed to the NBR” and “we stole it from them!” These are complex matters and difficult to pin down in the historical records. We still face the possibility that S. 3019, a bill with many precedent-setting provisions throughout its 64 pages, may giveaway the National Bison Range and other public lands of considerable value in lieu of appropriating money as settlement with CSKT. Giving away a fully functioning, successful and productive National Wildlife Refuge breaks provisions in the Refuge System Administration Act that have been in place since 1976, and never before breeched.
The following “brief” that tackles the most common erroneous facts about the National Bison Range. It is hoped you will find this brief – NBR Establishment Facts and Factors – enlightening and helpful in your efforts to defend this iconic, fully successful National Wildlife Refuge (the first one in the System placed there by specific Acts of Congress in 1908-09).
NBR Supported by Tribal Members: Sentiment of the People
“Duncan McDonald[1] rode with me over the proposed range and talked freely. I told him exactly what was proposed. He was bitterly disappointed that the Government…permitted the Pablo buffalo herd to go to Canada.
”If we can get the range, the animals will be put on it, I stated….”
‘Professor Elrod, I hope they will do it. We all hope so. The Indians are very sorry to see the Buffalo go. They all love them. They think the Government should keep them…. Every Indian will be glad if the Government can and will save them and keep them where they can be seen. And, if there is anything in this world I can do to help, I want to do it.’
“All the intelligent men whom I have talked with on the reservation express the same opinion…. The press has in a number of cases spoken highly of the proposed plan…. I have previously mentioned the efforts of Joe Allard (Pablo-Allard bison herd heir) to interest the Congress in the herd. Col. Rankin, allotting agent, is full of enthusiasm over the plan. There will not be a dissenting man, unless it may be someone who wants a portion of the range for himself.”
Eminent Domain: An Essential Requirement
Congressional exercise of eminent domain power for the NBR was required because of the 1904 Allotment Act.[2]
Bison Range establishment needed to avoid land selection conflicts with Tribal member’s Allotments and homestead sales, where possible. It needed to ensure a compact landscape capable of protecting the buffalo herd within special fencing to keep the bison from damaging adjacent farms and ranches. The landscape had to provide for herd growth and proper management of both animals and their habitats – a new and yet untested process.[3] Animals were to survive on natural feed without supplemental hay. Additions of elk, antelope and two species of deer into the NBR’s 18,500 acres added to those challenges but were deemed necessary due to severe depletions of large mammal populations throughout frontier America.[4]
Payments Supplied for the Lands
Payments for sales of Flathead Indian Reservation lands is important. Allotments for Salish, Kootenai and Pend Oreille Tribal members was completed in 1908-1909. Opening reservation lands to non-Indian homesteading and other public land laws was started in 1910. An appraisal Commission established in the Allotment Act was authorized to appraise lands subject to sales (including NBR lands) using apparent future uses to designate values.
NBR lands, as identified by M.J. Elrod and Duncan McDonald[5] – approved by Chief of the Biological Survey, the Superintendent of the Reservation, and the Forest Service engineer responsible for fencing the National Bison Range was completed in 1908.
However, a 1908 Reclamation Act declared that lands to be irrigated by the Flathead Indian Reclamation Project would include the homestead lands as well as Allotment lands. That declaration resulted in money from land sales, including the money appropriated by Congress for the National Bison Range, being applied in part as directed by the 1904 Allotment Act to constructing basic features of the Flathead Irrigation Project.
That “diversion” of funds from solely providing benefits to the Flathead Tribes and Indian members, to subsequently include the non-Indian homesteaders was objected to by the Tribal governing body and in 1915 the Flathead Indian Reservation Appropriations Act halted the diversion and repaid all previously diverted funds back into Tribal accounts.[6]
However, the diversion was found, in a 1946 Federal Court decision, to have still constituted a “Taking” under the 5th Amendment to the U.S. Constitution.
That decision was later accepted by the U.S. Court of Claims in 1971 resulting in actions to suitably remedy the Taking (i.e. providing “Just Compensation” as required by the Constitution).[7] CSKT agreed those actions to be taken would be Just Compensation during the 1971 Court proceedings. The compensation for all lands removed from the reservation, including CSKT attorney’s fees, amounted to $25,000,000. Of the net amount eighty percent were to be allocated directly to individual Tribal members and the final 20% directed to Tribal activities.[8]
The National Bison Range: A Proud History and Essential Future Role
Since NBR gates were closed behind the 34 newly purchased and 5 donated bison, soon to be joined by other grazing mammals and other species as the unique grassland’s habitat improved, the Bison Range has successfully maintained and enlarged its wildlife populations. Often using ‘trial and error’ adjustments necessary to prevent habitat deterioration, they have retained a high level of native plant dominance. NBR bison have been donated, sold, and transferred to areas across the Nation. Important biological and ecological studies have been conducted and published as the wildlife profession has grown and matured over the past century. Today, the National Bison Range bison genetics demonstrate unique traits and the highest known level of the N.A. plains bison genome of any conservation herd in the U.S. It is the anchoring herd for the FWS metapopulation; its loss would seriously affect that metapopulation, perhaps to a point that it could not meet established goals for numbers or composition. America needs the National Bison Range to remain within the NWRS and managed by a professional, trained and committed federal staff.
This Brief has been developed by William C. Reffalt, Vice President of the Blue Goose Alliance – a 501(c)(3) organization devoted to the integrity, and proper administration of the National Wildlife Refuge System. Dated Sept. 5, 2020
1. Bigart, R. and J. McDonald 2016, Op Cit., pp. 146-147 (along with pertinent notes).
2. U. S. Court of Claims 1971. CSKT v. United States. Case No. 50233, Cited as: 437 F.2d 458(1971).
3. Public Law 92-253, March 17, 1972. In addition, this Statute directed that the funds distributed to members of the Tribes “shall not be subject to Federal or State income tax.”
4. Ruth, Clara 1921. History of The Montana National Bison Range, Sanders and Lake Counties, Montana. USDA, Bur. Biological Survey unpublished report; December 1921, 27 pp.; Seton, Ernest Thompson 1909 (reissue of 1953). Lives of Game Animals – An Account of those Land Animals in America, north of the Mexican Border…. C.T. Branford, Co. Boston; 4 Volumes.
5. Duncan McDonald was a member of the Appraisal Commission. See Fahey, John 1974. The Flathead Indians. Univ. Okla. Press, Norman; pp. 298-302 (notes 29, 30). His multiple roles in the Allotment process, the selection of the land area for the National Bison Range and his respected ability to speak for the Tribes has been undervalued.
6. Bigart, R. and J. McDonald 2016, Op Cit., pp. 146-147 (along with pertinent notes).
7. U. S. Court of Claims 1971. CSKT v. United States. Case No. 50233, Cited as: 437 F.2d 458(1971).
8. Public Law 92-253, March 17, 1972. In addition, this Statute directed that the funds distributed to members of the Tribes “shall not be subject to Federal or State income tax.”