Landeen, Dan, and Allen Pinkham. Salmon and His People: Fish and Fishing in Nez Perce Culture. Lewiston, Idaho: Confluence Press, 1999, p 235 – 239. (reviewed by Jennifer Lenhardt)
Summary of the Treaty with the Nez Perces, 1855
Ratified in 1855, the treaty between the United States, Oregon, Washington, and the Nez Perce establishes the territory ceded by the tribe and the land retained for a reservation. Article I is devoted to the boundaries of the ceded territory, explicitly stating the rivers, mountains, and other natural boundaries that made up the occupied territory of the Nez Perce. Article II outlines in the same detail the land reserved to the tribe. The language of the treaty reads as follows; “There is, however, reserved from the lands above (territory ceded in Article I) ceded for the use and occupations of the said tribe, and as a general reservation for other friendly tribes and bands of Indians in Washington Territory, not to exceed the present numbers of the Spokane, Walla Walla, Cayuse, and Umatilla tribes and bands of Indians, the tract of land included within the following boundaries…” (Article II, Treaty with The Nez Perces, 1855). Interestingly, the authors clearly articulated a number qualification for the tribes to live on the reserved land.
Article III provides for means of transportation through the reservation if it serves the needs of the public. It allows for roads, highways, rafting, etc. “if necessary for the public convenience” (Article III, Treaty with The Nez Perces, 1855). This article also contains the infamous language about “The exclusive right of taking fish in all the streams where running through or bordering said reservation is further secured to said Indians; as also the right of taking fish at all usual and accustomed places in common with citizens of the Territory…” (Article III, Treaty with The Nez Perces, 1855).
Article IV discusses the price the United States will pay for said territory, $200,000, and the manner in which that price shall be paid. This article specifies that “all which said sums of money shall be applied to the use and benefit of the said Indians, under the direction of the President of the United States, who may from time to time determine, at his discretion, upon what beneficial objects to expend the same for them” (Article IV, Treaty with The Nez Perces, 1855). This is an intriguing qualification for the monies to be paid to the tribe, but apparently not to be exclusively used by the tribe as its leaders deem necessary.
Article V provides for the erection and maintenance of two schools and other buildings on the reservation including a blacksmith's shop, a tin shop, a gunsmith's shop, etc. Articles VI establishes the primacy of the President in making land allotment decisions. Article VII prohibits taking annuities to pay the debts of individuals. Article VIII essentially says that the people of the Nez Perce tribe will not make war on citizens of the United States or other tribes even in self defense. Article IX allows for the tribe to regulate its reservation according to its own laws and prohibits criminal refugees from obtaining asylum on the reservation. Article X allows for the land on which William Craig, a noted friend of the tribe, to be excluded from the reserved land that otherwise prohibits white settlers and last, Article XI specifies the ratification process and effective date.
Critique of Treaty with the Nez Perces, 1855
The specific language of this treaty illustrates the mentality of the governing parties of the time. The text was drafted by government officials and not tribesmen and subsequently, it reads as though it's the United States doing favors and allowing for the continued existence of the tribe. This is an interesting approach to land appropriation for governments that otherwise, in this time, ceded land rights to whoever staked the first claim. Not so with the Nez Perce and their reservation.
We have also seen how allowing the tribes to continue fishing at those usual and accustomed places has not provided for the protection of said fishing sites and in fact was not even considered a consequence to dam building and other river activity. Nor has it been considered when addressing issues of salmon run protection or restoration. Not until recently has this language combined with a deeper understanding of the importance of fish, salmon particularly, to native tribes.
The sections ceding authority to the president and promising not to wage war on anyone are interesting clauses that are not in treaties between other states and their federal government. The importance of state autonomy within the United States, and the subsequent right to dissent and essentially wage war, are deeply valued legal specifications. The omission of these types of checks and balances illustrate the mentality of the authors of this treaty.
Overall, the language of the treaty is deeply indicative of inconsistent and almost condescending behavior on the part of the United States government. The government established a paternalistic relationship with the Nez Perce in this treaty which has proved far less useful for protecting native interests than perhaps it originally seemed. This document is not a shining example of treaties between disagreeing parties, but rather a very honest example of the historical imbalance between government and native tribes.
Citation: Landeen, Dan and Allen Pinkham. Salmon and His People: Fish and Fishing in Nez Perce Culture. Lewiston: Confluence Press, 1999, p 235 – 239.
Robert D. Clark Honors College, University of Oregon
HC 441: Science Colloquium, Columbia River Ecology
Fall term, 2005
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