Since they were crowding the territory claimed by the fierce Blackfeet, sentinels kept a sharp watch to prevent a surprise attack. Every day the herald rode through the village, crying his morning and evening speech:
People, remember that when we come to the Buffalo country, we are in danger of war at all times. Our young men must be alert and guard well the camp. Do not let the enemy get the best of you! All young persons, post yourselves and keep watch! Post yourselves on high peaks, and keep watch on the ravines! Now, we shall all be on guard; so if the enemy are seen, we shall be ready for battle. We are liable to be put to death at any minute, so we must keep good watch. Our women and children are liable to be killed at any minute, so all of you must try to guard them.19
While sentinels watched the countryside for signs of enemy tribesmen, scouts searched the plains for traces of the huge, shaggy buffalo. Upon locating the herd the riders galloped madly back to the village to report. At the news warriors leaped upon the bare backs of their hunting ponies, and were followed by the women on foot. Whenever possible, the scouts stampeded the animals in the direction of the hunting party. If this could not be done, the warriors followed the trail until they could charge the buffalo. Then a mad race ensued, and we can well imagine that the athletic Young Joseph would not be the last in the chase.
As they closed in, the hunters shot their arrows with true aim to the vital spot behind the shoulders, killing as many of the beasts as the tribe would need. Then the women came along on foot, noting the arrows to learn what warrior had killed which buffalo.20 The markings on the arrows revealed the identity of the successful hunter. Because the use of arrows enabled the women to recognize the identities of the hunters, and because ammunition was expensive, they did not use guns to kill the shaggy animals.
The women skinned the carcasses, tanned the hides for robes or lodge coverings, and cut the meat into long strips. These strips of flesh were preserved by drying on racks in the sun. When mixed with marrow, the compound—called pemmican—furnished food for the winter months. The Nez Perces did not use dried berries in their preparation of pemmican, as was the custom among various other aborigines.
Upon the return of the tribe to the Nez Perce country, the band celebrated the successful hunt by giving feasts to their friends who had remained at home. The large number of hides owned by Joseph testified to his prowess as a hunter of buffalo.
6
The Treaty of 1863
Following the ratification of the 1855 treaty in 1859, the government, as mentioned in the preceding chapter, disregarded its treaty obligations to the Upper Nez Perces. Indian agents and superintendents, as already shown, made bitter complaints in their annual reports to the Commissioner of Indian Affairs. Mills and buildings promised by the treaty, they pointed out, had not been constructed; Lawyer’s salary as head chief was in arrears; work done on the required church was not paid for, nor were the several thousand dollars’ worth of horses furnished by the Nez Perces for the Yakima War of 1856–58. These conditions continued year after year, the agents complained, while settlers were constantly encroaching on Nez Perce territory. The Indian lands were overrun by miners, traders, farmers, and stockmen who disregarded reservation boundaries and the rights of the red men. White men took Indian women to live with, then deserted them and left their half-breed children as a burden on the tribe.
To the number of chiefs already angry over the broken pledges, there were now added others who were emboldened to hostility by the rumors set afloat by Southern sympathizers among the miners, who declared that the federal government was bound to collapse. Together, these discontented chiefs had a following of about twelve hundred. It required strenuous efforts on Lawyer’s part to keep his faction loyal to the government.
The government, being unable to supply annuities because of the Civil War, appointed a commission to negotiate a new treaty in 1863, and to adjust these matters. The commissioners included Calvin H. Hale, superintendent of Indian Affairs for Washington Territory; Agents Charles Hutchins and S. D. Howe; and Robert Newell, a friend of the Indians and later agent at Lapwai.
Again Lawyer represented about two thousand of the Nez Perces in the council called at Lapwai for May 15. Tu-eka-kas, Eagle-from-the-light, Three Feathers, Big Thunder, and Coolcoolselina were present to protect the interests of their disaffected bands. The conference was halted at its very beginning, because the Indians demanded Perrin Whitman, whom they trusted and who was then in the Willamette Valley, as interpreter. There was a delay of two weeks before his arrival.
Fort Lapwai—which had been established in the autumn of 1862—was garrisoned for the council with four companies of the First Oregon Cavalry. About four miles from the fort the government furnished a tent city for over three thousand delegates of the Nez Perce nation, at the site of the original Lapwai mission station.
Upon Whitman’s arrival the meetings were resumed. The commissioners asked the Indians to cede more land to the government. The proposed cession comprised about 10,000 square miles and included mines and rich agricultural land in Oregon and Washington, and large areas in Idaho. This would have reduced the reservation to five or six hundred square miles in the vicinity of the South Fork of the Clearwater. The Indians were to receive the usual annuities in goods and implements. As one voice the nation objected to having its reservation so drastically cut, so the commission agreed to double the size first proposed.
Tu-eka-kas remained absent for a few days, but sat in the council after Lawyer adroitly expressed his views. The lands to be ceded included Joseph’s beloved Wallowa Valley, the summer home of Tu-eka-kas’ band in the state of Oregon. Because of the spreading influence among the disaffected chiefs of the Earth-Mother, or Dreamer,1 religion, the Nez Perces were more fondly attached to the land than the average tribe. Unlike the Plains Indians, the Nez Perces were but seminomadic, and love of the homeland of their fathers was deeply cherished in their hearts.
Differing views over the reservation question between the Upper and Lower Nez Perces caused a rift in the friendly relations of the various bands, so the commissioners withdrew from the council. This changed Lawyer’s attitude, which at first had been one of confidence in his ability to bargain shrewdly for his own ends. He suggested a counterproposition of his own to the commissioners. On June 3 Hale again called a grand council with all the chiefs present, except Eagle-from-the-light, who, however, was represented by a deputation of his warriors.
The meetings continued for several days, and once more it became evident that the dissenters were growing defiant. Commissioner Hutchins told them “that their sullen and unfriendly manner was the occasion of the disagreements among the Nez Perces, and that although they might persist in refusing to accept their annuities, as they had done heretofore, such action would not release them from the obligations of the treaty they had signed in 1855.” Naïvely, Agent Hutchins neglected to mention that since the government had repeatedly violated its treaty obligations in past years, such violation constituted an abrogation, and therefore any of the Nez Perces were within their legal rights to renounce the document.
The dissenting chiefs did not alter “their attitude of passive hostility” toward the commission. Instead, they withdrew from the council. Matters now became threatening, and the commissioners feared the defection of the entire nation. Becoming apprehensive for their own safety, they dispatched a message to the fort requesting a guard. A detachment of cavalry under Captain Curry immediately responded, arriving at the council ground shortly after midnight. The soldiers found everything quiet, although at one of the principal lodges fifty-three chiefs and headmen had assembled to hold earnest debate. The arguments revolved around the question of whether to accept or reject the proposed treaty. Being still unable to reach an agreement by daybreak, the head chiefs on each side dissolved their confederacy “in a solemn but not unfriendly manner.” After shaking hands all around they separated. The seceders were Tu-eka-kas, Eagle-from-the-light, Big Thunder, Coolco
olselina, and their headmen.2
Thus ended on June 7, 1863, the federation of the Nez Perce nation. With its termination the authority of Chief Lawyer no longer extended to the four seceded bands. The dissenters did not consider any subsequent promises made by Lawyer as binding upon themselves. Henceforth, Tu-eka-kas and the other seceders recognized the terms of the Treaty of 1855 alone. This splitting up of the bands had an unfortunate effect on the Nez Perce nation. Since they could no longer count on the support of the entire confederation, they were weakened in any future bargaining with the government. Consequently their claims no longer carried as much weight as before.
The commissioners learned what had taken place between the different factions. They continued negotiations with Lawyer and his followers and concluded a new treaty on June 9. Its provisions reduced the reservation to one sixth of its former size and included the cession of the Wallowa Valley. The Indians were to receive $260,000 for the lands ceded, in addition to the annuities already due them.3 Lawyer and Big Thunder signed the treaty, since their homes at Kamiah and Lapwai, respectively, were reserved to them.
That one word “home” caused the Nez Perce nation to split. H. Clay Wood has analyzed the sacred meaning of that word to the followers of Tu-eka-kas and other nontreaty chiefs:
To the parties of the treaty, it brought no loss, no change; to the non-treaties it revealed new homes, new scenes; it left behind deserted firesides; homes abandoned and desolate; casting a shadow upon their wounded and sorrowing hearts to darken and embitter their future existence. In this God-given sentiment—the love of home—is to be found the true cause of the Nez Perce division.4
Young Joseph, in his own words, explains the attitude of his father regarding this treaty:
My father was not there. He said to me: “When you go into council with the white man, always remember your country. Do not give it away. The white man will cheat you out of your home. I have taken no pay from the United States. I have never sold our land.” In this treaty Lawyer acted without authority from our band. He had no right to sell the Wallowa (winding water) 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.5
Although Lawyer and his headmen may have been justified in selling to the government Asotin Valley in Washington and considerable territory in Idaho, they were without legal right in disposing of Wallowa Valley in Oregon. In the form of an allegory illustrating the injustice of Lawyer’s act, Young Joseph offers an irrefutable argument:
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.6
After the Lapwai council of 1863 the two factions of the Nez Perces went their separate ways. Thereafter they became known as the treaty and nontreaty Indians. Chief Lawyer upheld the government and tried to keep his people loyal; Chief Tu-eka-kas and his Wallowa band of nontreaties continued to refuse their annuities. Nor did they confine themselves to reservation boundaries. Instead they pursued their seminomadic habits and preserved their “rugged individualism” in the best of American traditions. The people of Tu-eka-kas spent their winters in the Imnaha Valley and the summers in Wallowa, as their ancestors had been accustomed to do for generations. However, the two factions at first maintained neutral relations and exchanged visits, and the young people intermarried.
Tu-eka-kas returned to Wallowa after the council and planted poles around the valley he claimed, which was about fifty miles wide. “Inside,” he declared, “is the home of my people—the white man may take the land outside. Inside this boundary all our people were born. It circles around the graves of our fathers, and we will never give up these graves to any man.”7
On April 20, 1867, President Andrew Johnson proclaimed the ratification of the 1863 treaty. In the meantime, the government had still neglected to fulfill the provisions of the first document of 1855.
Neither the treaty nor nontreaty Indians needed keen eyesight to see that no school was maintained at Lapwai from 1864 to 1868; that annuities were not being paid; and that agency affairs were handled in such an inefficient way that even the most loyal Nez Perces became disgusted.8
Even government investigators were appalled by these conditions, which were due to the negligence and incompetency of Caleb Lyon, governor of Idaho and ex-officio superintendent of Indian Affairs during 1867, who had been absent from his office in Boise since early in the spring. His inefficiency drew severe criticism from J. W. Nesmith, who stated in his report to the Commissioner at Washington: “When present, he [Lyon] conducted them [Indian affairs] with an ignorance unparalleled, and a disregard of the rights and wants of the Indians, and of the laws regulating intercourse with them, deserving the severest rebuke.”9
The nontreaty Indians denounced the government for its repeated violation of promises, and ridiculed the childlike faith of their Lapwai brethren. Their words aroused a number of treaty Nez Perces, who complained of their grievances to Agent O’Neill. Not receiving the satisfaction they expected, their protests turned into open threats. They were urged on by the nontreaties.
O’Neill called a council with the reservation chiefs. His report to the Commissioner of Indian Affairs describes the seriousness of the disaffection then prevailing among the treaty faction:
The most of the other leading chiefs declined saying anything, leaving it for “Lawyer” to do. “Lawyer” of course, in obedience to the commands of his chiefs, was compelled to speak in a manner foreign to his feelings; and I can here say truly that had not “Lawyer” spoken as he did, had he shown in his speech the least inclination towards favoring the government in their non-payment of the annuities due his people, had he urged his people, as in times past, to live up to this treaty as they had former ones, and to keep the laws as the Nez Perces ever had, he would not have lived forty-eight hours after: I know this to be true; I know that some of his own people would have killed him. As “Little Dog,” one of the chiefs of the Blackfeet was killed for his friendship to the whites, so “Lawyer” would have been sacrificed. Since the above was written I can see the disaffection growing. They want to know if some “big war will not be again commenced to put off matters for a few years.” I can truthfully say that these Indians will not be put off with promises any longer, some of the leading chiefs (Lawyer’s chiefs too) will fight if they do not see something done for them soon. The non-treaty side use these arguments (these promises and non-payments) to urge them on to committing some act, which when commenced will be hard for them to back out of.10
Still the Indian Bureau procrastinated. In the following year Lieutenant J. W. Wham, appointed agent at Lapwai, regretfully reported that the Nez Perces no longer had faith in the government’s pledged word. Since the 1863 treaty was unsatisfactory, Chiefs Lawyer, Utsemilicum, Timothy, and Jason traveled to Washington DC to make a supplemental treaty on August 13, 1868.11 The government agreed to reimburse the tribe for twenty thousand dollars, which Governor Caleb Lyon claimed had been stolen while in his possession. This loss had necessitated the closing of the school from 1864–68.
The Interior Department renewed its promises to survey the land, so that Indians and whites should know exactly their respective boundaries. But this, too, proved as delusive as the other governmental pledges. The surveyors, with the least possible exertion, marked off the land as suited their fancy, and made no attempt to lay out farm boundaries in
the manner provided by the treaties. Regarding this, Colonel De L. Floyd Jones, superintendent of Indian Affairs for Idaho, wrote in his report to the Commissioner, General E. S. Parker: “As now surveyed . . . the work is entirely useless, and the expenditures will be for the benefit of the contractor rather than the Indians. Both the Agent, Captain D. M. Sells, and myself protested against the survey as now going on, but without avail; it is clearly not within the intent or wording of the treaty.”12 An investigating committee frankly admitted: “It was a most scandalous fraud. . . . The Government cannot be a party to such frauds on the people who intrust it with their property.”13
In the light of all the evidence, the remarkable feature of these relations between the government and the treaty Nez Perces during the fifteen years from 1855 to 1870 is the amazing restraint that was exercised by the chiefs in keeping their people from resorting to guns to exact justice. Certainly the government would not have tolerated any breaches of faith on the Indians’ part such as its own officials had been guilty of toward the Nez Perces.
From 1868 the Secretary of the Interior instructed the Lapwai agents to inform Chief Tu-eka-kas that his nontreaty faction was expected to vacate the Wallowa Valley and move onto the greatly reduced reservation. Officials of the Indian Bureau maintained that since Lawyer had signed the Treaty of 1863 as head chief of the Nez Perces, all bands of that nation, whether they were individually signatories or not, were subject to the provisions of that document. Government officials applied the parliamentary bible, Robert’s Rules of Order, to a race that had never heard of such procedure. Evidently the commissioners had no knowledge of Nez Perce character or customs. Among these Indians, as pointed out previously, although a majority might agree to a particular course of action, the minority were at liberty to do as they saw fit. This custom even extended to the warpath—no Indian was forced to fight an enemy if he had no hatred of the foe, or if his “medicine” prophesied disaster.
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