Kiowa writer N. Scott Momaday says of the Indian point of view, that treaties “were the spoken word,” promises made in the interest of peace and the celebration of peace. The idea that land “ownership” could be conveyed by a written document was not part of their understanding.
Kevin Gover, Pawnee and then Director of the National Museum of the American Indian, said that “treaties matter—not only to American Indians but also to everyone who lives in the United States. For starters, the United States acquired much of its land through treaties with Indian Tribes. These negotiated, bilateral agreements are, therefore, fundamental to understanding how the United States was created, and how its citizens obtained the land and natural resources they enjoy today.
“Treaties rest at the heart of Native American history as well… The approximately 368 treaties that were negotiated and signed by U.S. commissioners and tribal leaders from 1777 to 1868 enshrine promises our government made to Indian Nations. But they also recognize tribes as nations—a fact that distinguishes tribal citizens from other Americans, and supports contemporary Native assertions of tribal sovereignty and self-determination…
“Treaties are legally binding and still in effect… treaties carry the weight of the past and test the strength of our nation’s commitment to honesty, good faith, and the rule of law.”
Nation to Nation: Treaties Between the United States & American Indian Nations
The Pilgrim-Wampanoag Peace Treaty
This treaty was drafted and signed on 22 March 1621, between governor John Carver of the Plymouth Colony and the sachem Ousamequin (better known by his title Massasoit), of the Wampanoag Confederacy. The treaty established peaceful relations between the two parties and would be honored by both sides from the day of its signage until after the death of Massasoit in 1661.
Massasoit was interested in this peace because of his diminished status in the region, which owed to the loss of many of his people to disease, and the rise of the Narragansett tribe, to whom he now had to pay tribute. He hoped, by this alliance, to regain his former power and prestige. The pilgrims hoped to establish peace to prevent hostilities, and enable profitable trade.
It is the only treaty between immigrants and Native Americans from Colonial America (and, arguably, in the history of the later United States) which remained unbroken throughout the lives of the signatories.
The Doctrine of Discovery was initiated by the Papal Bull “Inter Caetera,” issued by Pope Alexander VI in 1493. It stated that any land not inhabited by Christians was available to be “discovered, claimed, and exploited by Christian rulers” and declared that “the Catholic faith and the Christian religion be exalted and… that the health of souls be cared for and that barbarous nations be overthrown and brought to the faith itself.”
Sovereignty is the power of a state to do everything necessary to govern itself, such as making, executing, and applying laws; imposing and collecting taxes; making war and peace; and forming treaties or engaging in commerce with foreign nations.
Marshall Doctrine of limited sovereignty. Citing the Doctrine of Discovery, the Marshall court issued a set of three Supreme Court decisions affirming the legal standing of Indian “nations,” but limiting their sovereignty.
- Johnson v. McIntosh (1823), held that private citizens could not purchase lands from Native Americans.
- Cherokee Nation vs. Georgia (1831), held the Cherokee nation dependent, with a relationship to the United States like that of a “ward to its guardian.”
- Worcester v. Georgia (1832) stated that the federal government was the sole authority to deal with Indian nations.
A treaty is a “binding formal agreement, contract, or other written instrument that establishes obligations between two or more subjects.” The US government signed 368 treaties with Indigenous nations from 1778 to 1871. From 1832 until 1871, American Indian nations were considered to be domestic, dependent tribes. In 1871, the House of Representatives ceased recognition of individual tribes as independent nations, ending the practice of treaty-making between the U.S. and American Indian tribes. Existing treaties retain their legal value.
Most people come to the Nez Perce story through the 1200-plus mile fighting retreat that we call the Nez Perce War of 1877. They then work back to the Nez Perce people, their history and culture before the War. That history is enmeshed in two major treaties and an aborted presidential attempt to make things right for one band of Nez Perce, all three of which preceded the Nez Perce War.
The treaty of 1855, made at Walla Walla, and the Lapwai Treaty of 1863, which shrunk the Nez Perce reservation lands by 90 percent and is often called the “Liars” or “Steal Treaty,” are well documented in the history books. Much less is written about President Grant’s executive order of 1873, which briefly established a reservation in the Wallowa for hinmato·wyalahtqit—Chief Joseph—and his band, the walʡwáˑma, the people of the walʡáwa.
This exhibit is a brief sketch of the people and ideas that addressed treaties and reservation land-promises from 1855-1875, before all collapsed into war in 1877. In this exhibit, we note that treaty language is still the law of the land, and allow Nez Perce descendant David Liberty to argue for “annulment” of the 1863 Treaty.
Walla Walla Treaty
In the early June 1855 days of the Walla Walla conference, Isaac Stevens stated his intent to create two reservations: the Spokans, Cayuses, Wallawallas and the Umatillas would move in with the Nez Perce; and several Columbia River bands and tribes would be included on another reservation in the Yakima country.
The conclusion of the Walla Walla Treaty Conference, and the treaty-makers’ decision to allow the Nez Perce their own reservation, was influenced by the arrival of Chief Looking Glass from a long trip in the Buffalo Country. The presence of Looking Glass and his warriors, and the total number of Nez Perce in attendance—over 2500—persuaded Stevens and Palmer to negotiate a separate reservation for the Nez Perce.
The final 1855 reservation was not a severe diminishment of lands generally considered Nez Perce, acknowledging their presence and power. The treaty language of continued hunting, gathering, root and berry harvesting, and grazing in “usual and accustomed” grounds outside reservation boundaries on what became three reservations—the Yakima, Umatilla, and Nez Perce—attested to the wisdom and negotiating skills of the tribes.
Gustavus Sohon, a native of East Prussia, arrived on the Columbia River in 1852 as a private in the U.S. Army. Isaac Stevens appreciated his artistic talents and had Sohon accompany him to the Walla Walla Treaty grounds. His drawings and watercolors of the event are the visual records we have. And Sohon’s “Arrival of the Nez Perce” matches Stevens words:
“a thousand warriors mounted on fine horses and riding at a gallop, two abreast, naked to the breech-clout, their faces covered with white, red, and yellow paint… decked with plumes and feathers and trinkets fluttering in the sunshine… firing their guns, brandishing their shields, beating their drums, and yelling their war-whoops.”
Sohon drew many of the leading Indians at the Council, including tiwi·teqis, Chief Old Joseph. It is the only image we have of him.
Sohon’s originals are at the Washington State Historical Society.
Isaac Stevens and Joel Palmer
Isaac Stevens parlayed his support of President Pierce into an appointment as Governor of the Washington Territory, Superintendent of Indian Affairs for the Territory, and Surveyor of the Northern Route for a Transcontinental Railroad. First in his class at West Point, small—5’3” in physical stature, and ambitious at his appointments in 1853, Stevens sought to be the man who united the country’s East and West. He first negotiated over 2.5 million acres away from Indians west of the Cascades, and then, at Walla Walla in 1855, negotiated the Yakima, Umatilla, and Nez Perce Reservations. Indian reservations were crafted to make room for, or allow easement for, the Northern Rail Route.
Joel Palmer, also appointed by President Pierce, was Superintendent of Indian Affairs in the Oregon Territory, where he negotiated nine treaties, hoping first to convince all Western tribes to move east of the Cascades, then looking towards a large coastal reservation, which did not materialize.
The two men and 47 American soldiers, armed with food and gifts, met some 5,000 Indians at Mill Creek for the Treaty Conference in the Walla Walla Valley in May, 1855.
The “Liars Treaty” of 1863
In 1860 gold was discovered on the Clearwater River on the 1855 Nez Perce Reservation. Within two years over 15,000 white miners were on Indian lands, illegally, because they came without permission of the Indian agent or the Indians. In June of 1863 Superintendent for Indian Affairs in Washington Calvin Hale called a meeting at Lapwai, in which he hoped to reduce Nez Perce lands by almost 90 percent. Chiefs Lawyer and Timothy supported ceding more land; Old Joseph, White Bird and others opposed, and refused to sign the new treaty. Hale rounded up more signatures, but few from those who had signed in 1855. The two factions, “treaty” and “non-treaty,” agreed to part “friends, but a distinct people.”
Some Nez Perce consider the presence of potential mineral ores to have been a factor in determining boundaries proposed in the 1863 treaty, and indeed, the treaty appears to have excluded potential ore-bearing rocks from the reservation, whether by intent or inadvertently.
No gold had been found in the Wallowa at that time, and although the Homestead Act had been enacted in 1862, there was still no white settlement. But Lewiston, situated between Lapwai and the Wallowa, had become a thriving city, and Hale was intent on his smaller reservation.
On leaving the council, tiwi·teqis, Old Joseph, tore up his copy of the 1855 treaty and the Nez Perce translation of the Book of Matthew, given to him by missionary Spalding. To this day, many Nez Perce now call this the “Liars” or “Steal Treaty.”
In 1879, after the Nez Perce War and two years in exile in Kansas and the Indian Territory, hinmató•wyalahtqit, Chief Young Joseph, traveled to Washington D.C. to plead for a return to the West. The story of the horse is from his famous speech at Lincoln Hall:
“If we ever owned the land we own it still, for we never sold it. In the treaty councils the commissioners have claimed that our country had been sold to the Government. Suppose a white man should come to me and say, ‘Joseph, I like your horses, and I want to buy them.’ I say to him, ‘No, my horses suit me, I will not sell them.’ Then he goes to my neighbor, and says to him: ‘Joseph has some good horses. I want to buy them, but he refuses to sell.’ My neighbor answers, ‘Pay me the money, and I will sell you Joseph’s horses.’ The white man returns to me, and says, ‘Joseph, I have bought your horses, and you must let me have them.’ If we sold our lands to the Government, this is the way they were bought.”
Speech at Lincoln Hall in Washington D.C., 1879.
Published in North American Review, Vol. 128, Issue 269
President Grant’s Peace Policy
In 1868, President Ulysses S. Grant advanced a “Peace Policy” to remove corrupt Indian agents who supervised reservations and replace them with Christian missionaries, whom he deemed morally superior.
“In reality the [peace] policy rested on the belief that Americans had the right to dispossess Native peoples of their lands, take away freedoms, and send them to reservations, where missionaries would teach them how to farm, read and write, wear Euro-American clothing, and embrace Christianity. If Indians refused to move to reservations, they would be forced off their homelands by soldiers.” —Clifford Trafzer, ed., American Indians/ American Presidents: A History, 2009
John Monteith, a Presbyterian, was appointed the Indian Agent on the Nez Perce Reservation at Lapwai.
Reservation for the Roaming Nez Perce of the Wallowa Valley in Oregon
In 1873 the Plains Indian Wars were in full swing, the Modoc War was percolating on Oregon’s southern border, and President Grant was looking for a new way to solve the “Indian Problem.” Reservations—with constantly shifting boundaries, were the prevailing method. John Monteith was the Indian agent at Lapwai. With Indian officials in Salem (who feared hinmato·wyalahtqit, Young Joseph, joining the Modocs) and Washington D.C., and unable to move him to Lapwai—and some thinking that Old Joseph’s refusal to sign the 1863 Treaty meant that the Indians still “owned” the Wallowa, they devised a plan to leave half of the Wallowa to the Nez Perce. Grant signed the executive order in April, 1873.
Some say there was an “administrative error”—the Indians were given the north half, the primary region of settlement. And although appraisals were made, no money came to buy settlers out, and more kept arriving. hinmato·wyalahtqit’s big hope—with the President’s signature on it, was dashed with another executive order rescinding the first executive order and reopening the entire Wallowa to settlement in 1875.
Questions on the Grant Reservation
In March of 1873, hinmato·wyalahtqit and his brother, Ollokot, were summoned to Lapwai for a meeting with Indian Agent John Monteith and Superintendent of Indian Affairs for Oregon T.B. Odeneal. Odeneal was worried about the ongoing Modoc War, and, fearing that the Nez Perce might stage an uprising, suggested that Joseph and Ollokot move to Umatilla; they refused, and explained again that they had never given up the Wallowa.
All parties agreed to an East-West division of the Wallowa, meaning the Indians would have the Snake and Imnaha rivers, Joseph Creek, and Wallowa Lake, which would accommodate seasonal rounds of hunting, fishing, and gathering; and the settlers would have the more agriculturally friendly western half, lands also adjacent to the already settled Grand Ronde Valley.
But when the signed executive order came back from Washington, the division was North-South, with the Indians getting the north half, which included most of the settler claims. Joseph was disappointed, but I think finally grateful that he had a president’s signature on an agreement saying that some of the Wallowa was his.
The executive order also meant that the country was closed for new settlement in 1873—another reason for Joseph to go along. The government appraised settler improvements—”87 settlers and 2 corporations,” with $67,000 worth of improvements.
No funds came to buy settlers out, the Modoc War ended, and the Executive Order was rescinded in 1875. Most historians say that the change from an East-West division to North-South was a clerical error. But was it? Or was it a purposeful change that would make the proposal unacceptable to whites and/or Indians?
What do others think?
The Boldt—and Belloni—Decisions
On February 12, 1974, Federal Judge George Boldt issued an historic ruling reaffirming the rights of Washington’s Indian tribes to fish in accustomed places. The Boldt Decision allocated 50 percent of the annual catch to treaty tribes. Boldt based his decision on 1855 treaty language that assured Indians the rights to fish, hunt, gather, and graze in “usual and accustomed places… in common with the citizenry” beyond the reserved lands. And, importantly, based on the 1855 understanding of “in common with.” In 1855, Indians were not US citizens, and in 1974 Boldt decided that “in ommon with” meant “shared equally.”
Oregon District Court Judge Robert C. Belloni had ruled for the Columbia River tribes in United States v. Oregon in 1969, upholding basic tribal fishing rights in accustomed places; in May, 1974, Belloni followed Boldt’s lead and allocated 50 percent of the spring Chinook salmon harvest to the Columbia River tribes.
There were challenges and further refinements, but in the end, Boldt—and Belloni and the tribes—were upheld by the US Supreme Court. Refinements resulted in promotion and financing remediation of fish losses, and of maintaining fisheries for tribal people as described in treaties.
Sockeye Salmon and Wallowa Lake
Early European settlers in the Northwest did not understand salmon, and did not listen to tribal people. Fishwheels and canneries decimated Columbia River salmon runs in the early twentieth century, and dams on the main stem and its tributaries are further endangering remaining salmon runs.
In Wallowa Lake, early settlers scooped and seined sockeye salmon out by the thousands, salted and sold salmon, fed salmon to hogs, and used them for fertilizer. The supply seemed inexhaustible; they had failed to realize the species’ special migration pattern from headwaters, to lake, to river and ocean and back again to spawn in the waters to which they were imprinted. A series of dams at the foot of Wallowa Lake, beginning in 1890 with a wooden one and succeeded by more formidable concrete ones, stopped the sockeye migration and left the lake to their landlocked cousins, the kokanee.
The current dam needs substantial repair to hold its designed amount for irrigation and against flood. A new Wallowa Lake Irrigation District is working with the Nez Perce Tribe Department of Fisheries Management to ensure fish passage with a dam rebuild. And after 120 years, sockeye will once again swim in “usual and accustomed places,” including Wallowa Lake.
Nez Perce in the Wallowa Today
Since the Boldt Decision in 1974, governments, tribes, and communities have paid increasing attention to treaty language. Although Indians from Lapwai and Umatilla have come to the Wallowa intermittently to hunt, fish, and gather, numbers had been small and the practices not widely publicized until recently.
Now the Nez Perce Tribe works to restore salmon and lamprey in the Wallowa out of a fisheries office in Joseph; the Tribe has owned and managed the 16,268-acre Precious Lands Wildlife Area in the northeast corner of the Wallowa since 1997; the Tribe recently purchased culturally important land on the west moraine of Wallowa Lake. Tribal governments at Lapwai, Umatilla, and Colville all joined to help with the purchase of the Iwetemlaykin State Heritage Site at the foot of Wallowa Lake.
Wallowa County government works with the Nez Perce Tribe on its Salmon Plan; the Nez Perce Wallowa Homeland brings tribal members from Lapwai, Umatilla, and the Colville Reservation in Washington to an annual powwow—Tamkaliks—on 320 acres at the edge of the town of Wallowa; Indian religious leaders from all three reservations lead services at the new Longhouse on the Homeland grounds; Nez Perce from everywhere sing and dance and host a Friendship Feast at the annual Chief Joseph Days Rodeo; The Nature Conservancy, Wallowa Land Trust and private landowners arrange and host root diggings regularly; and the Wallowa Lake Irrigation District is talking with Indians about restoring the ancient sockeye salmon run.
After the five-month and 1200 mile-plus Nez Perce fighting retreat of 1855, the combatant non-treaty bands were pinned down at Bear’s Paw in Montana. Ollokot and other war leaders were dead; White Bird and about, including many women and children, made it across the border to Canada—helped by Joseph’s stalling tactics.
Joseph and the remaining tribespeople were promised a return to Idaho in the spring by Colonel Nelson Miles, but it was not to be. They were transported to Bismarck by boat and horse, and from there by train to St. Paul and then Leavenworth, in Kansas.
After eight years in the “hot country” (‘iyeq’iispe) at Leavenworth, Baxter Springs, and on the Quapaw Reservation and at the Ponca Agency in Indian Territory, with Joseph pestering Washington with telegrams and going to Washington D.C. himself to make a stirring speech in Lincoln Hall, the Nez Perce were allowed to return to the West—but not to Oregon. And Joseph himself could not go to Idaho, where there was still a warrant for his arrest.
They returned by train, and at Wallula Junction in Washington they divided. About half of the 300 went to Lapwai in Idaho. Joseph and his close followers went to live with the Moses Band on the Colville Reservation in north-central Washington. Many, including some from Canada, would filter back to the Umatilla Reservation in Oregon.
Today, the Nez Perce are scattered on those three reservations—the Nez Perce Reservation at Lapwai, in Idaho, the Colville Reservation in Washington, and the Umatilla Reservation in Oregon—and on reservations and in cities and towns across the country.
Josephy Center Writer-in-Residence
My Neighbor Sold My Horses
Another look at the Nez Perce Treaty of 1863
In his 1879 speech at Lincoln Hall in Washington D.C., before scores of curious civilians, cabinet members and congressmen, hinmato·wyalahtqit—Chief Joseph—explained how he lost the land he promised his father he would protect with his life. He told the story of his neighbor selling his horses as described in this exhibit.
After signing the treaty of 1855, tiwi·teqis, Chief Old Joseph, leader of the walwá·ma, or wele·mutkin band of the Nez Perce, considered themselves protected. They had signed an official document, they had acted in good faith, had followed the provisions of the treaty to the best of their abilities. Eight years later their neighbors signed away their land forever.
Hinmato·wyalahtqit’s surrender speech at Bear’s Paw has been read by nearly everyone, and it is quite elegant. His address in Lincoln Hall is much more revealing of his character, and should put to rest the discussion over whether somebody else wrote his surrender speech.
He said: “In this treaty Lawyer acted without authority from our band. He had no right to sell the Wallowa country. That had always belonged to my father’s own people, and the other bands had never disputed our right to it. No other Indians ever claimed Wallowa”.
As a descendant of wele·mutkin’s band I feel some duty to see that the concerns of the past are still valid today.
After the 1855 treaty was ratified, gold was discovered within the treaty boundary. It did not take long for squatters to occupy any lands they could. The Wallowa Valley had its own appeal: Abundant grasslands had farmers pushing their stock onto treaty protected land. Every year the band lost more land to squatters.
A letter from the U.S. Attorney, John J. McGilvra, said the 1855 treaty “is being flagrantly and openly violated in almost every particular. The lands of the Indians, in some instances their little farms are being taken from them, their stock is being stolen, intoxicating liquor is being sold and given to them without measure, and in one instance at least one of their number was shot down in cold-blood by one of those White robbers. Their condition is indeed wretched and they are in despair.” Military protection of the Natives is recommended.
In 1873 a commissioner of the Indian Bureau reported the move to be impracticable. That was the year the Wallowa Valley was withdrawn from settlement and set apart for their use and occupancy by Executive Order.
David Liberty, Josephy Center Writer in Residence
Annulment of the 1863 Treaty
It is my belief that the treaty of 1863 is illegitimate and should never have become law. Annulment would take an act of Congress, but it can be done. Recently, The Confederated Tribes of Warm Springs Indians had their 1865 treaty annulled via an act of Congress, S.832.
Regarding the 1863 Treaty with the Nez Perce Nation:
The 1855 Stevens treaties are the law of the land and have been upheld in court for 166 years.
Enforcement of the 1863 treaty directly instigated the 1877 Nez Perce ‘War’ resulting in the near extinction of the Wallowa Valley Band.
The 1855 treaty clearly gives ownership and “exclusive use and benefit” to the Nez Perce Tribe to a clearly defined tract of land. The 1863 treaty violates this provision.
The treaty of 1863 includes what could be construed as a bribe. The head chief and two subordinate chiefs are promised $2,500 each. For comparison, $1200 was intended to be enough to erect a furnished hospital. Article 6 may also be considered a bribe since it gives Timothy another $600 to aid him in the erection of a house.
Chief Joseph said of the 1863 treaty: “In this treaty Lawyer acted without authority from our band. He had no right to sell the Wallowa country. That had always belonged to my father’s own people, and the other bands have never disputed our right to it.”
The 1863 Treaty with the Nez Perce misrepresented the organizational structure of the Nez Perce Nation by appointing a Head Chief that was not acceptable to all members.
Therefore, be it resolved:
That the 1863 treaty with the Nez Perce be henceforth annulled and consideration be given for appropriate compensation.
David Liberty, Josephy Center Writer in Residence