A preliminary analysis of comanagement approaches in the multijurisdictional contexts with indigenous of the United States and Canada: A comparison of sociocultural facets effects on natural resource management strategies. By: Stephen A. Daire Wild Rockies Field Institute Summer Semester 2014 Instructors: Peter Nelson Carlos Garcia Katie Nelson Kelsey Patterson Daire 1
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Comanagement approaches in multijurisdictional contexts: A comparison of sociocultural facets on resource management strategies.
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A preliminary analysis of comanagement approaches in the multijurisdictional contexts with indigenous of the United States and Canada: A comparison of sociocultural facets effects on
natural resource management strategies.
By: Stephen A. Daire
Wild Rockies Field Institute
Summer Semester 2014
Instructors: Peter Nelson Carlos Garcia Katie Nelson
Kelsey Patterson
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Is comanagement between indigenous and state organizations a viable means to meet the
needs of 21st century sustainable development ideals? Can a balance be found between the
federal governments and the Native American tribes in the comanagement of natural resources?
Is it possible to restore cultural heritage of the Native Americans along the way, are they willing
to participate (McGregor, 2004; Wyatt, 2008)? What differences and similarities can be denuded
cross jurisdictional analyses of indigenous and state interactions towards comanagement
strategies? What are the inherent sociocultural obstacles and how are they overcome? Finally,
after sociocultural barriers have been defined, can traditional knowledge be effectively and
respectfully incorporated in aboriginal forestry practices, particularly in the Yellowstone to
Yukon Region (Y2Y)? Would this allow for a paradigm shift to occur to undermine centuries of
colonialism by promoting methods for indigenous dissemination of knowledge (McGregor,
2004; Wyatt, 2008)?
To start to address these questions, I will begin by comparing and contrasting the
relationships of the United States of America, (U.S.A), and Canada with their respective Native
American populations, the Confederated Salish & Kootenai Tribes, and the Ktunaxa tribe, of
British Columbia. Addressing the ecological contexts in which these groups adapted to and
formed within, as a means to accentuate cultural history, I will note key areas where
sociocultural barriers have been formed between these local cultures and these nation states.
Using the Tribal SelfGovernance Act, (TSGA), of the USA and Aboriginal Laws, under Section
35, Constitution Act, 1982, (S35CA) of Canada to reveal critical areas where governance has
been made effective, hindered, or allows for further exploitation (Cornell, 2006; Wyatt, 2008,
CASTRO?). I will parallel these laws and how they effect with their indigenous counterparts
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Ordinance 79A relating to the CS&KT and the Qat Muk relating to the Ktunaxa. This will accent
how divergent laws of colonialism has affected the comanagement within these groups. Finally,
utilizing works of Deborah McGregor and Carlos Garcia, I will respectfully attempt to define
traditional and ecological knowledge. In doing so, this paper will stress the barriers which have
led to contemporary issues with comanagement. Analysis of these works will allow for a
holistic, or multidisciplinary, perspective on incorporation of traditional knowledge in aboriginal
forestry, scientific knowledge, and its significance for cultural and biological survival in relation
to natural resources comanagement, e. g. of Salvelinus confluentus (bull trout) and Ursus arctos
(Grizzly Bear).
The 1994 TSGA, provided a means for the federal government to transfer authority from
itself to Native American tribes in matters of management of federal lands, most of which
contain reservations. Native American tribes are allowed to petition bureaus within the
Department of the Interior for management of programs that are of “special geographical,
historical, or cultural significance to the tribes.” The TSGA connects tribal self determination
policy and federal land management. It has the potential to alter federal/tribal relationships and
transform institutions which are responsible for public land management and the United States’
natural resources.
TSGA amends the 1975 Indian Self Determination and Education Assistance Act and
extends it 3 major ways. One, it includes nonBureau of Indian Affairs programs. Second, it
expands coverage from programs that are exclusively for the benefit of Native Americans,
because of their status as Native Americans, to other programs which are significant to the tribes.
Third, it includes options for management of federal land and natural resources. Legal scholars
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have suggested that the TSGA represents a significant step toward the comanagement of
protected areas in the United States, even referring to the TSGA’s potential for integrating tribal
cultural values, traditional ecological knowledge, and Native American management practices
into public land management as “profound.”
The TSGA expanded the avenues available for tribes to participate in public land
management in two ways. First, it establishes a governmenttogovernment negotiation process
that obligates agencies to negotiate with tribes. Johnson and Hamilton write:
In the past, Bureaus other than BIA refused to cooperate with tribes, but their Cooperation is now compelled. It was the intent of the Committees of jurisdiction that any division or agency of the Interior Department on or near the reservation were negotiate items for selfgovernance tribes. The Secretary is mandated by Section 4030(b)(2) to sit down with tribes on these matters.
The second way that the TSGA expands tribes’ ability to manage public land is by
allowing the tribes to exercise congressionally delegated federal authority through Annual
Funding Agreements. The TSGA allows for the delegation of authority over federal programs
and federal land for the first time. Tribes are sovereign political entities that retain inherent
sovereign power within their districts, however, TSGA, may extend the extraterritorial
dimensions of tribal sovereignty, by strengthening the ability of the tribes to control and
participate in managing programs and functions that impact tribal sovereignty located outside of
reservation jurisdiction.
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This increased participation of Native Americans in the United States government did not
come easily. Using the National Park Service, as an example of the past United States’ relations
with Native American’s, tribes were either forced or questionably consented to being displaced
off of traditional communal property and dissolving social institutions. These effects of
conservation have been an issue plaguing indigenous rights and sovereignty for decades globally
(KARIEVA?). As a result, national parks or refuges often border sacred sites, sacred geography,
and places of ongoing traditional uses (hunting & gathering). This can be seen in the exemplar of
the Confederated Salish & Kootenai Tribes, of Pablo, Montana, where their Tribal Wilderness
area abuts the Mission Mountains Wilderness area (Flathead Cultural Committee, 1993). When
the national parks were created, there was a desire to create an accessible tourist attraction made
to look as an uninhabited wilderness or “pristine” wilderness, e. g. the Pikuni Blackfeet’s forced
removal during Glacier National Park’s creation. As shown below.
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Conservation efforts by nations and environmental nongovernmental organizations
(ENGOs) have often resulted in the exclusion of tribal members from their land, prohibition of
traditional tribal land uses within park units, and the extinguishment of Native American title and
rights altogether (Spence, 1999). These foundations laid contact/incursion by the United States,
and Canada during, and prior to, the 1800s led to sociocultural barriers from the treaty making
between the two nations and their indigenous populations. These barriers included, but were not
limited to language, border recognition, concepts of land use, access knowledge, resources, and
racism.
These can also be denuded through examination of the Qat’Muk written by the Ktunaxa,
and Ordinance 79A by the CS&KT to examine their effectiveness in providing channels for
effective comanagement (Bigcrane, 2014). Most comanagement seems to be triballly initiated.
This makes an evaluator question why. Is it because the tribes are more interested in
comanaging and the governments are not? Does this demonstrate an idea of superiority over the
other? The government never approaches first and then activates a plan. They start to activate a
plan and then let the Native American tribes contact them. Are they trying to do want they want
without input from them, ie sneak it past. Both parties should reach out to each other in order for
there to be mutual respect and understanding.
Comanagement agreements among multiple jurisdictional frameworks and stakeholders
offers promising options for dealing with natural resource conflicts via inclusive
decisionmaking and equitable sociocultural engagement. However, experience shows that
comanagement regimes can set into motion new conflicts or cause old ones to escalate. The
resulting effects may not be power sharing, but a strengthening of the state's control over policy.
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Contrary to embellishing local empowerment, strategies may further marginalize communities
and resources. Divergent interest of state agencies and tribal planning and implementing arise
and cause comanagement arrangements to become harmful to the group lacking resources to
employ and enforce legislation(Garcia?, Castro?). These facets highlight the cultural, political,
and legal obstacles encountered by indigenous and other rural communities in trying to negotiate
comanagement arrangements with larger, more powerful nation states. Exploring conflicts that
arise in comanagement regimes in decision making is very limited due to the lack or prevention
of inclusion by the nation states.
Lack of respect on the federal government’s part can be seen by Canadian involvement in
the Jumbo Glacier Resort issue. The Jumbo Glacier is a proposed year round ski resort in the
Jumbo Valley, 50km Southwest of Invermere British Columbia. The ~2,600 beds, gondolas, and
shops have been proposed at the head waters of the Jumbo River and Horsethief Creek, both
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tributaries for the Columbia River, and on the glaciers of the valley. This location is critical for
several reasons, namely as: habitat connectivity for grizzly, clean drinking water, and the sacred
geography of the Ktunaxa. See the area below:
Y2Y, CabinetPurcell. (2014)
According to the gene assays compiled by (conservation/ wildlife biologist) Dr. M.
Proctor (2005; 2010), the grizzly bear population unit for the region is already under stress due to
human use and the road on the valley bottom. His results suggest that there has been, and will be
further, genetic depression and reduced gene flow caused by partial isolation of this subgroup of
U. arctos from the larger metapopulations. He also notes that the CabinetPurcell Mountain
population is a key for linkage between the United States and Canadian U. arctos populations. In
a personal correspondence written by Dr. Proctor to the provincial government he warned that
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further development, the Jumbo Glacier Resort Ltd., would contradict, and undermine efforts to
provincial and federal efforts to resort U. arctos populations.
This is directly in contrast to the beliefs of the Native American tribe of this region. They
have a deep respect and affinity for the grizzly bear and desire to have it protected, as stated
below:
We, the Ktunaxa have lived in our territory since time immemorial and have a deep spiritual connection to the animal world and, in particular, to the grizzly bear. Qat’Muk is a very special place where Klawla Tuklulakis, the Grizzly Bear Spirit, was born, goes to heal itself, and returns to the spirit world. The Grizzly Bear Spirit is an important source of guidance, strength, protection and spirituality for the Ktunaxa. Qat’Muk’s importance for the Grizzly Bear Spirit is inextricably interlinked with its importance for living grizzly bears now and in the future. The Ktunaxa have a stewardship obligation and duty to the Grizzly Bear Spirit and Qat’Muk. … Affirms that the United Nations Declaration on the Rights of Indigenous Peoples supports the Ktunaxa Nation’s right to: (a) manifest, practice, develop and teach our spiritual and religious traditions, customs and ceremonies and to maintain, protect, and have access in privacy to our religious and cultural sites[Article 12]; and (b) maintain and strengthen our distinctive spiritual relationship with our traditionally owned or otherwise occupied and used lands, territories, waters and other resources and to uphold our responsibilities to future generations in this regard [Article 25]...
“Qat’Muk Declaration” (15/11/2010) The Canadian government has ignored these exhortations and allowed the resorts plans to
be completed lacking proper environmental impact assessments. In allowing the project plans to
be drawn up and base foundations built, the Government and Jumbo Glacier Resort Ltd failed to
address Aboriginal Title possessed by the Ktunaxa at the time. These cross serious lines of trust
and respect, by neglecting consultation of the tribe. The Canadian government chose to repeat a
long standing colonialist framework of cooperation, and in doing so completely removed the
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tribes legal rights to have a position of decisionmaking in its outcome. The Federal and
Provincial governments also failed to acknowledge the cultural significance of the grizzly bear,
and its spiritual reciprocity in the tribes worldview.
The Canadian government needs to set a new a precedent in relation with the Ktunaxa in
order to protect their natural resources in Jumbo Valley. The Ktunaxa stated that the Qat’Muk, or
Jumbo Valley, is an important part of their culture and heritage. Their ideals should be respected
along with the realization that this is part of the heritage of the EuroAmerican Canadians and that
they should think about the impact of development on this pristine wilderness area.
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In the United States, the CS&KT have been working for years on the restoration and
revitalization of the Flathead culture in the Glacier National Park area. One example of this
effective co management was the return of bull trout, S. confluentus, to the Jocko River. The
project has two key facets allowing for comanagement, first the integration of the tribal history
into the local school systems, and the second the physical restoration of the Jocko itself. These
two facets break down into two subcategories: 1) assessment, 2) protection, healthy section asa
reference, 3) passive restoration, 4) active restoration, when all else failed, use of historic
reference for river banks. These areas of comanagement were made accessible via the TSGA.
Funds obtained for this project were provided by British Petroleum, Atlantic Richfield Company,
due to the tribes successful litigation to restore the Superfund site caused by the Butte mines
1908 flooding and contamination of the tributaries of the Silver Bow Creek drainage. The
projects successful comanagement was also facilitated via the Tribes Jocko River Master Plan
for the restoration, which was a cooperative effort with Montana Fish, Wildlife, & Parks. The
tribes land tenure, and their archaeological remains have suggested that there was more extensive
use of bull trout as a food source and a cultural symbol. Land Tenure is a big deal for contention
between tribes and their presiding nation states.
In Canada, the native peoples are subject to Aboriginal Laws, under Section 35,
Constitution Act, 1982. It covers a spectrum of rights which include: marriage, adoption, to
sitespecific exercise of harvesting or other rights where no claim has been made to the land
itself, to assertions to an Aboriginal title to the land. Aboriginal Title, is the common law
doctrine which explains the land rights of indigenous peoples. It explains that customary tenure
persists after the assumption of sovereignty under settler colonialism. The requirements for the
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proof of title for the recognition of aboriginal title, the content of aboriginal title, the methods of
extinguishing aboriginal title, and the availability of compensation in the case of extinguishment
vary greatly by provincial jurisdiction. Nearly all jurisdictions are in agreement that aboriginal
title is inalienable, except to the national government, and that it may be held either individually
or collectively.
Quite recently, the Tsilhqot’in Nation v. Bristish Columbia Aboriginal Law were
completed to settle disputes over logging in British Columbia on, “Whether Crown incursions on
Aboriginal interest justified under s. 35 Constitution Act, 1982 framework — Forest Act.”
(Millen, 2013)
The Supreme Court of Canada reviewed the obligations of the Crown government owed
to cases involving Aboriginal Law prior to and after formation of treaties which have been
established. The majority of the case focused on whether the provincial ruling was faulty
according to S35CA in its decision on the consultation and accommodation of the tribe based on
intensity and exclusivity of occupancy, including the proof required to validate that occupation.
For confirmation that: the government did meet its requirements to entertain the tribes needs; that
the objective of the consultation was substantial; and that, the governments guardianship of the
tribe(s) in question met the standards of S35CA. This ruling that the Crown did not meet its
mandated requirements ultimately translates a precedent for future government consultation in
all matter with tribes where aboriginal title comes into question and that they must not infringe
upon the tribes wellbeing, and that the government may not benefit while tribes are debilitated.
For rights, other than the Aboriginal title, the Supreme Court of Canada holds that the
claimant must demonstrate that the right was integral to their indigenous societies and exercised
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at the time of the first contact with Europeans. While these may now be practiced in a modern
way, practices that arose from a European influence are not protected. This paradox is often
expressed in the commercial trade of furs and fish, which the courts have seen as a product of
European contact rather than integral to the Aboriginal peoples prior to that contact.
No Aboriginal right is absolute, even though it is constitutionally protected. Fishing
rights are not exclusive to the Aboriginal people and they may be regulated by other
governments. Aboriginal titles may give rise to an exclusive right but societal purposes, such as
economic development or power generation may interfere with that right. Historically,
Aboriginal land rights have been extinguished by land treaties or land claims rather than
legislation. At the present time, there is no form of self government of the Aboriginal people.
The inclusion of S35CA is supposed to signal a new era of political and judicial opinion
on the question of Aboriginal rights. The Guerin (1984) and Sparrow (1990) decisions of the
Supreme Court of Canada created the duty of the Crown to act as a fiduciary in its dealings with
Canada’s Native peoples and justify its conduct when protected rights are infringed upon or
interfered with. The Sparrow decision stated that the court would not set limits on the types of
rights that could be categorized as Aboriginal rights and that the court should be flexible in the
manner in which was sensitive to the Aboriginal perspective, however, it would not protect any
rights that were extinguished prior to the date when the Constitution Act came into effect.
According to former Special Rapporteur on the Rights of Indigenous Peoples to the
United Nations Permanent Forum on Indigenous Issues, James Anaya active from May 2008 to
May 2014 completed a report on the human rights situation of indigenous peoples in Canada
which is, at its best terms, tense. Based on his compiled research gathered from various sources,
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including a visit to Canada from 7 to 15 October 2013, a follow up visit in 2004 to the U. N.,
prior to Canadian recognition of a voluntary agreement with the U. N. to increase the welfare of
Indigenous people, represented negative relationships between indigenous groups. These
relationships are governed by a welldeveloped legal framework via a number of policy
initiatives that in many respects are meant to be protective of indigenous peoples’ rights. Yet,
despite these positive steps, daunting challenges remain.
His report highlighted that the wellbeing gap between aboriginal and nonaboriginal
people in Canada has not narrowed, treaty and aboriginals claims remain persistently unresolved,
indigenous women and girls remain vulnerable to abuse physically & sexually, and overall there
appear to be high levels of distrust between First Nations and the Federal Government. There is
also a strongly held undertone of racism from the government towards First Nations groups. The
concerns he notes, merit higher priority at all levels within all branches of Government, and
across all departments, a collective action against discrimination via accommodation, yet not
assimilation of cultural groups.
A firm basis of understanding must be formed and effective partnerships must be
established between the two groups, if future cohesion is to become a viable concept. These
partnerships must include a paradigm shift in power, allowing First Nations to have the final say
in decisionmaking, along with the majority of actions being completed through their own
institutions and organizations. It is paramount for both the Federal and provincial governments to
aspire to, and attain goals based on respect of the S35CA, treaties both extant and imminent,
and international statutes. In reviewing the sociocultural barriers that impede and promote
comanagement, on both sides of the border, the signs are clear as to which nation is playing
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more of an active role in viable frameworks. The United States Tribal SelfGovernance Act is a
paramount tool to allow for power to shift back to tribes, and to aid in their successful attempts at
management of their own cultures and natural resources. The Canadian Aboriginal Laws, under
Section 35, Constitution Act, 1982 are a good groundwork for future efforts of comanagement
to coalesce, yet as with many of the issues that affect development on Crown Land, these acts
have been swept under the rug. Canadian policy, needs to be more firm in promotion of First
Nation Rights as well as coming to terms with the ruling of the Tsilhqot’in Nation v. Bristish
Columbia. There must be reforms to the legislative bodies provincially and federally to honestly
and respectfully, consult and administer Aboriginal Title and Rights that will not be exploitative.
Futhermore, the GlacierWateron Lakes International Peace Park was set up in 1932 to
preserve that area for future generations for all nationalities. It was the first park set up
internationally to preserve man’s natural and historical world. It is a World Heritage Unesco Site
with some of the largest areas of undeveloped land on the North American continent. The park
contains a distinctive climate with a mountain to prairie interface with a triocean hydrographical
divide .There is a sudden transition of mountain to prairie without foothills. This is a pivotal spot
in the Western Cordillera of North America with an evolution of plant and ecological
communities seen nowhere else in the world. Every effort has to be made to preserve the culture,
history, plant and animal life of the area. With effective co management of this area, it has been
illustrated that the land can be restored to some of its pre EuroAmerican invasion state, ie, CSK
& T restoration of the bull trout, but it has also shown how it does not have effective
comanagement with the development of Ktunaxa heritage sites with the potential for the loss of
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the grizzly bear. Comanagement has to be effective and cooperative on both sides of the border
with all peoples in order to save the park.
Since this was the first international park, it can also be the first park where cooperative
management can restore some of it to its original state. The name, itself, was to signify
cooperation between peoples, ie “peace.” It is the responsibility of future generations to carry
through with that plan and manage the park effectively, maintaining its natural beauty, plant and
animal life and history.
Works Cited
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1) Kirkby, B. 2011, February 18). Exploring the wild frontiers of the Jumbo Valley. The Globe & Mail. 2) Ktunaxa Nation Council. ( Nov, 15 2010). Qat’muk Declaration. 3) Hume, M. (21/03/2012). Shuswamp band sees benefits in Jumbo Glacier Ski Resort. The Globe & Mail. 4) MacDonald, S. (05/06/2014). Ktunaxa to appeal Jumbo Decision. Cranbrook Daily Townsman. 5) Devin, S. & Doberstein, B. (2004). Traditional Ecological Knowledge in Parks Management: A Canadian perspective. Environments, 31(2), 4769. 6) Gahr, T. L. (2013) The origins of Culture: An Ethnographic Exploration of the Ktunaxa Creation Stories. ( MA Thesis). Royal Roads University. 7) Proctor, M. (07/2010). New Research Reguarding grizzly bears in the Purcell and Selkirk Mts. And the Jumbo Glacier Report proposal. 8) Proctor, M., McLellan, B. Strobeck, C., & Barclay, R. M. R. (2005). Genetic Analysis reveals demographic fragmentation of grizzly bears yielding vulnerability of small populations. 9) Houde, N. (2007). The Six Faces of Traditional Ecological knowledge: Challenges and opportunities for Canadian comanagement arrangements, Ecological & Society, 12(2) 34. 10) Blackburn, C. (2005). Searching for Guarantees in the midst of Uncertainty: Negotiating Aboriginal Rights and Title in British Columbia. American Anthropologist, 107(4). 586596. 11) Kareiva, P., Marvier, M., Lalasz, R.(2012). Conservation in the Anthropocene: Beyond Solitude and Fragility. Breakthrough Institute, Winter. 12) Dodge, Jim (1981). Living by life: Some Bioregional Theory and Practice. CoEvolution Quarterly, Winter 612. 13) Flathead Culture Committee. (1993). A Brief history of the Flathead Tribes. 14) Kimmerer, R. (2011). Restoration & Reciprocity: The Contributions of Traditional Ecological Knowledge. Human Dimensions of Ecological Restoration: Integrating Science, Nature, and Culture. (Eds. Egan, D., Hjerpe, E. E., and Abrams, J.) Washington: Island Press. 257276. 15) Smith, T. (2010) Introduction, Ch 1: Tribal World of the Northern Rockies, & Ch 6: Resistance & Renewal. A History of Bull Trout & the Salish & Pend d’Oreille People. Natural Resources Department, Confederated Salish & Kootenai Tribes. Lincoln: University of Nebraska Press. 16) Watson, A. (2010). Traditional Wisdom: Protecting relationships with wilderness as a cultural landscape. Ecology & Society, 16(1), 36. 17) Hansen, G. (2007). Contemporary wilderness and American Indian Cultures. International Journal of Wilderness, 13(2), 18 20. 18) Confederated Salish & Kootenai Tribes. (2005). Mission Mountain Tribal Wilderness Case Study. Native Lands & Wilderness Council.
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19) National Outdoor Leadership School. (2006). Federal Land Management. Wilderness Ethics: Valuing and Managing Wild Places. Mechanicsburg, Pa. Stackpole Cooks. 8797. 20) Spence, M. D. (1999). Chapter 5: Backbone of the World & Ch 6: Crowning the Continent. Dispossessing the Wilderness: Indian removal & the making of the National Parks. Oxford: Oxford University Press. 71100. 21) Nadasdy, P. (08/05/2003). Reevaluating the oManagement Success Story. 22) National Geographic Topographic Map of the Mission Mountian Wilderness. The Armchair Explorer. http://www.thearmchairexplorer.com/montana/mimages/blmsites/mapmissionmountains01.jpg 23) Major Land Ownership in the Flathead Drainage. Mobile LoGIStics Mapping, 2010. http://www.flatheadwatershed.org/land/images/fig6_1_Ownership_02_2010823_CSKT_PNG_XP_FULL.jpg 24) Ktunaxa Nation rally for grizzly bears, (2012). Conservation Northwest. http://www.conservationnw.org/whatwedo/britishcolumbia/grizzlybearsinthepurcellsatjumbovalley 25) CabinetPurcell Mountain Corridor. (2014) Yellowstone to Yukon Initiative. http://y2y.net/data/1/recimgs/63newwebsitemapscpwebversion.jpg 26) Recommended Changes to Lake County Density Map (reflecting Tribal Cultural and Natural Resource Concerns). (2005) http://www.cskt.org/images/tld/landuse_map1.gif Confederated Salish & Kootenai Tribes. 27) Jumbo Glacier Ski Resort Approved. (2012). http://assets.vancitybuzz.com/wpcontent/uploads/2012/03/JumboGlacierResortMountainse1332273020692.png?d03c45. Vancity Buzz.