Nez Perce Treaties–a puzzle solved?

I have  been fascinated by President Grant’s proposed “Reservation for the Roaming Nez Perce Indians of the Wallowa Valley” since  I saw the map of it in Grace Bartlett’s Wallowa Country: 1867-1877 years ago. I thought that if those Nez Perce had just had the foresight to put up picket fences and stop “roaming,” they might not have lost the Wallowa. More recently, I have seriously wondered what went wrong with it.

As I learned more about Nez Perce history and culture, the joke to myself became serious. An important bedrock of understanding Indian-White history in the United States is white efforts at “assimilation.” Assimilation meant adopting white ways—which did not involve seasonal food migrations, but staying in one place to grow and harvest.


I’ve also learned that President Grant was upset with the way that Indians had been treated by the War Department, and launched a “Peace Policy” that would remove corrupt Indian Agents and replace them with Christian Missionaries. (The missionaries were not immune to corruption.) So Grant had a heart, and with government officials at Lapwai sympathetic to the Indians, proposed his new reservation in 1873. The government went so far as to appraise the improvements on white settlers land. This list is also included in Bartlett’s important book, and indicates that 86 settlers and two corporations were responsible for some $67,000 in improvements.


Grace believed, and others have said, that the maps got mixed up between here and Washington D.C., and that Joseph and the Indians were awarded the north half of the Wallowa, which included the major settlements in and around the town of Wallowa. Whites were to have the South Half, including Wallowa Lake and the upper Imnaha. Clerical error always seemed a little flimsy, but I had never seen anything that would support or contradict it.

Until a friend found and forwarded an article in the January 1999 American Indian Law Review by John K. Flanagan. It’s called “The Invalidity of the Nez Perce Treaty of 1863 and the Taking of the Wallowa Valley,” and argues that the 1855 Treaty, which left the Wallowa to the Nez Perce, had been legally signed by many of the Nez Perce leaders, including Old Joseph; the subsequent, 1863 Treaty which Joseph and many other band leaders did not sign is not a valid treaty binding on Joseph’s band. Flanagan argues that Joseph “had not signed the treaty with the belief that he was giving up rights in the land to the whole tribe.”


He buttresses this argument with the story of white government officials insisting on a “head chief” or leader of all the Nez Perce who could sign and obligate the leaders of all bands. This concept was totally foreign to the Indians. Flanagan finds instances where government officials acknowledge this.  His conclusion is that “for cultural, political and legal reasons… the [1941] Court of Claims should have found the 1863 Nez Perce Treaty invalid in so far as it pertained to Joseph’s band, and therefore should have recognized that the band had rights in the Wallowa or at least should have awarded the band appropriate compensation.”


That is Flanagan’s primary purpose in the article; the Grant “Roving Nez Perce” treaty is a side issue, but an important one. And here I quote him at length about it:

    A compromise was then reached between Joseph’s band and the Indian agents. They agreed to divide             the Wallowa Valley between Joseph’s band and the white settlers. Joseph and his people were willing to share and live with the whites so long as they could continue their way of life. A division of the region on an east-west basis would have permitted the band to fish, hunt and gather roots in traditional fashion. Perhaps for that reason, the Executive Order of 1873 issued by the government instead divided the land north and south, leaving the Nez Perce with the best agricultural land. The U.S. government wanted the Nez Perce to end their “roaming” and to settle and become farmers, and that was likely the reason why the executive order divided the land in such a fashion.


In other words, rather than a clerical error which swapped north and south sections of the Wallowa, there was an “on the ground” understanding that the division would be east-west, which would have allowed Joseph’s band to continue their ancient seasonal migrations, and a purposeful change to north-south by the U.S. Government. This slip of hand—had the Indians accepted it—would have radically altered their way of life. So they disregarded it.

And, although General Howard made a plea to Washington in 1875, saying that it was “a great mistake to take from Joseph and his band of Nez Perces Indians that valley…, “ in the same year “the President rescinded his order and the entire Wallowa region was reopened to white settlement.”

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