Tribe uses treaty to graze cattle

By Katy Nesbitt, The Observer December 21, 2012 08:01 am

JOSEPH — A vacant livestock allotment in the Hells Canyon National Recreation Area is once again being used for winter cattle grazing. 

A recently drafted agreement between the Nez Perce tribe and the U.S. Forest Service allows Joe McCormack, tribe member and Joseph resident, to graze cattle on an allotment vacated in 2009.

However, McCormack and the tribe’s agreement with the Forest Service is not as a livestock grazing permittee, but as a reserved rights holder as detailed in the 1855 U.S./Nez Perce Treaty. 

Mitch Bulthuis, range staff for the Wallowa-Whitman National Forest, said the tribe asked for an expression of its grazing rights and McCormack is its recognized representative.

“The Forest Service and the Nez Perce created an annual grazing agreement together,” Bulthuis said. 

Geoff Whiting, attorney for the Nez Perce, said the 1855 Nez Perce Treaty with the United States states the tribe has “the exclusive right of taking fish in all the streams ... and of erecting temporary buildings for curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon ‘open and unclaimed land.’”

“Modern day, the courts have repeatedly interpreted ‘open and unclaimed lands’ in the above treaty provision — and other similar Indian treaty provisions — as encompassing open public lands, specifically including National Forest lands,” Whiting said.

The tribe cannot exercise these rights on private land.

So far McCormack has turned out 30 mother cows and 12 calves on what is known as the Lone Pine allotment at Dug Bar where the Imnaha River meets the Snake River. Per a consensual agreement with the Forest Service, he is allowed to run his cattle there from Nov. 15 to May 15.

McCormack said he will have 50 head at Dug Bar by the end of the year and he plans to grow the herd in the coming years.

“Those are amazing winter grazing lands,” Whiting said.

The Lone Pine allotment was cancelled in 2009 and has not been grazed since. In Wallowa County Natural Resource Advisory Committee meetings, representatives from the Forest Service’s range department said one of the options for the vacated allotment was to use it as a grass bank — an emergency pasture if a permittee lost access to grass from a wildfire, for instance.

Members of the committee urged the Forest Service to keep the allotment open and release it for grazing.

McCormack, a fisheries technician for the tribe, already has an agreement to graze four horses during the winter on Thorn Creek, a tributary on the lower Imnaha.

McCormack said in cooperation with the tribe, he requested grazing land for cows he planned to purchase. Dug Bar seemed like a good fit — McCormack knows the land, his recently purchased cattle have been raised in canyon country, and he wasn’t going to be taking anything away from other ranchers.

“I could go anywhere on the forest, but I don’t like to make bumps in the road with neighbors, so I asked to graze a vacant allotment,” said McCormack.

McCormack said he bought his cows from Imnaha ranchers Scott and Vicky McClaran. In the summer, his cows will move to the Chesnimus area of the forest and graze alongside the McClarans’ cattle.

Whiting said the tribe and the forest have a common interest in resource protection, but a tribal member grazing on ceded land is new for the Nez Perce.

“It’s the first time in anyone’s memory that cattle have been grazed under Nez Perce Treaty rights,” Whiting said. “In the 19th century the tribe was famous for its horses, but grazing hasn’t been done by a lot of tribal members.”

The Nez Perce ceded Oregon land includes Wallowa County, and west to the Blue Mountains, Whiting said.

Todd Nash said he is concerned about the tribe grazing on the national forest.

“It’s worrisome that they can run cattle wherever they want to — the forest, the national recreation area, or the wilderness. If these cows enter one of our permits, we’re the ones that will have to move out.”

Dennis Sheehy, who runs cattle on an adjacent allotment to Nash, is concerned about two different systems being in place.

“It opens up questions. This is totally different because it creates two different systems of enforcement and regulations,” he said.