On an early October day last fall, members of the Cheyenne, Blackfeet, Eastern Shoshone and Northern Arapaho tribes gathered in Jackson Hole, Wyoming, where a large piece of parchment lay unfurled on a wooden table. One by one, tribal representatives approached the front of the room where they put pen to paper, committing to restore and revitalize the threatened grizzly bear across North America.
Since then, some 125 tribal nations from the United States and Canada have signed the Grizzly Treaty, only the third international agreement of its kind in 150 years. The impetus for the treaty was the proposed removal of the Yellowstone grizzly from the Endangered Species Act.
Tribal nations contend that the federal government ignored legally required rules to consult with tribes, and that removing federal protections for grizzlies could open their habitat up to energy development. According to the U.S. Fish and Wildlife Service, the Yellowstone grizzly population has largely recovered from a population of around 300 in 1975 to nearly 700. However, tribes disagree, arguing that even if Yellowstone’s population has grown, other grizzlies in the lower 48 states are still vulnerable.
With a delisting decision expected in the coming weeks, tribes—backed by U.S. senators and congressmen — are making one final push to have their voices heard.
Ben Nuvamsa, the former chairman of the Hopi Tribe of Arizona and member of the Hopi Bear Clan, believes the Fish and Wildlife Service faced pressure from ranchers, oil companies and miners.
“We speculated that the ulterior motive is to open up ... the habitat for mining and fracking that would destroy the (land),” Nuvamsa says. “The grizzly bear, historically, is a religious icon to virtually all tribal nations in the United States and Canada. There is not one tribe that does not hold the bear in high regard and does not include the bear in its ceremonies.”
Nuvamsa was part of a tribal delegation that traveled to Washington D.C. in 2015 to speak with then-Fish and Wildlife Service director Dan Ashe about the possible delisting of the Yellowstone grizzly.
Under Executive Order 13175, implemented by former President Bill Clinton and reaffirmed by former President Barack Obama in a memorandum, all federal agencies must engage in a “meaningful” consultation and coordination process with tribal governments when making decisions that may affect them.
“We met with them and we asked for a full consultation and meaningful consultation with all the tribes,” he recalled. “They said they would consult with us, but then they didn’t do that. They held a conference call and it was really just one-way communication. Consultation means something different to us. We didn’t get that. It seemed to be empty promises.”
In April, Reps. Markwayne Mullin, R-Okla., and Tom Cole, R-Okla., sent a letter to Congress urging Department of the Interior Secretary Ryan Zinke to honor the “mandatory predecision and meaningful government-to-government consultation with tribes when considering the delisting of the grizzly bear.”
Then, in June, Sens. Bernie Sanders, Tom Udall, and Cory Booker sent another letter to Zinke, expressing their concerns about the lack of legally required consultation. “Federally recognized tribes are not simply stakeholders who would be affected by delisting, but sovereign governments that must be included in management planning,” they wrote.
Lack of consultation between the federal government and tribal nations has been an ongoing issue, gaining greater attention during the Standing Rock protests over the Dakota Access Pipeline last year. But though federal law requires consultation, enforcement mechanisms are hazy to nearly nonexistent. Executive orders cannot be enforced unless they are issued following a mandate or would allow one party to sue another for enforcement or compensation. Executive Order 13175 depends on the trust responsibility outlined in the Constitution, rather than a statutory mandate and provides no legal grounds for litigation.
Instead, tribes must pursue other avenues to halt the Yellowstone’s grizzly delisting. Last year, the Oglala Sioux Tribe petitioned then-Department of Interior Secretary Sally Jewell for a Congressional investigation into the conduct of the Fish and Wildlife Service after Matt Hogan, deputy director of the Mountain-Prairie Region, was made the point person for tribal contact regarding the Yellowstone grizzly delisting. Hogan, however, is a trophy hunter and previously served as the Safari Club International’s chief lobbyist to Capitol Hill. Tribes allege that he has ties to Anadarko Petroleum and Gas.
According to the Grizzly Treaty signatories, the Greater Yellowstone area is home to numerous sites of cultural and historical significance, which the bear currently protects via its ESA status. Without ESA protections, the bear’s territory could be opened to at least 28 preexisting mining claims under the 1872 General Mining Act that have operating plans in the core of the Yellowstone’s grizzly habitat.
“Upon development, those mines will threaten environmental harms to Tribal Nations’ sacred and historic sites, and to treaty lands in the region,” says Lee Juan Tyler, councilman of the Shoshone-Bannock Tribes of Idaho.
One of the main management plans tribes want discussed is the possibility of relocating grizzlies onto tribal lands. In the Grizzly Treaty, tribes say they want grizzlies restored to biologically suitable habitats on tribal lands within the grizzly’s historic range. This includes key areas within the Wind River, Blackfeet and Flathead reservations, as well as other suitable lands.
“There are areas where the Shoshone-Bannock can manage them, and areas where other tribes can manage them,” Tyler says, pointing to areas like the Frank Church Wilderness and Gallatin National Forest. However, these ideas have fallen on deaf ears, and with a delisting decision expected any day now, tribes expect they’ll be forced to appeal the delisting under the Federal-Indian trust responsibility or on a scientific basis — as was done in 2007 — alongside environmental groups.
“It is no coincidence that the spiritual reawakening of Native people on this continent has coincided with the modest recovery of the grizzly since the 1970s,” Crow Creek Sioux Tribe Chairman Brandon Sazue says. “A recovery that will end with delisting and trophy hunting in a return to the frontier mentality of the 1870s.”