By the 1860s, American greed fueled by the lust for gold and the lust for Indian land coupled with arrogant anti-Indian racism was creating political pressure for the United States government to reduce the land controlled by the Nez Perce in Idaho and to confine the Indians to a small reservation to Christianize them.
In 1863, Congress passed the Idaho Territory Organic Act creating Idaho Territory which included all of present-day Idaho and Montana and much of Wyoming. Historian Alvin Josephy, in his book The Nez Perce Indians and the Opening of the Northwest, notes:
“White public opinion now had a powerful political weapon with which to bring increased pressure against the Nez Perces; the miners would have politicians of their own interested in the territory and the national capital to force federal policies and action in support of their interests against those of the Indians.”
The Nez Perce
The Nimipu were given the designation Nez Perce (“pierced noses”) by the French fur traders. As applied to this tribe, the designation Nez Perce is a misnomer. In his 1882 Report on an Examination of the Upper Columbia River and the Territory in its Vicinity in September and October 1881, Thomas Symons writes:
“No writer had ever accused them of piercing their noses, and it is certain that they never did so except in very isolated cases, if at all. They have been described by a number of early explorers, but this custom has never been mentioned.”
Their homeland was in the area of the Snake and Salmon Rivers which are tributaries of the Columbia River.
Prior to the arrival of the Europeans, there was no Nez Perce tribe with regard to a unifying political or government organization. While the bands shared the same language and culture, there was no integration of the various Nez Perce bands into a larger government structure. However, after the adoption of the horse, many of the bands formed loose, temporary alliances with each other for making forays across the Rockies and into the Plains for hunting and warfare.
The Nez Perce band was composed of several villages or camps which were located along a stream. Band names were usually taken from the most prominent village within the band’s territory. Each village had a council which selected and advised a village leader. In his book Conflict and Schism in Nez Perce Acculturation: A Study of Religion and Politics, anthropologist Deward Walker reports:
“Village leadership was in the hands of the eldest, able male in most instances, this position being semi hereditary but also based on individual ability.”
Walker prefers to call this leader a “headman” rather than a chief. Deward Walker goes on to report:
“In the larger villages comprised of several interrelated extended families, there was often more than one such headman. Typically, they were advised by a council of the elderly and prominent males, with women not having a formal voice in such matters.”
Regarding the role of the Nez Perce headman, historian Alvin Josephy, in his book Nez Perce Country. reports:
“His duties were to arbitrate disputes, act as spokesman, oversee the well-being of the villagers, and provide an example of outstanding and generous conduct, sharing his wealth with the needy. In return, the people often gave him food, clothing, and other goods, especially for settling arguments.”
At the band level, the Nez Perce had a council made up of the headmen from the various villages as well as other prominent men. There were two ways of obtaining chiefly status at the band level. The first was to gain a reputation as being a generous man by sponsoring feasts and tutelary spirit dances and by distributing goods. The second way was through war exploits. To become a war chief, a warrior had to obtain ten war honors (coups). According to Deward Walker:
“The leader of the most powerful village may have had a greater voice than the others, but not as a rule. Instead, at this level, individual war prowess seems to have been more important in determining a leader’s authority, and well-known warriors might come from any of the villages of the band.”
The Nez Perce also had some governmental organization above the band level. Neighboring bands would sometimes be unified into confederacies or composite bands. The largest of these composite bands was found on the upper Clearwater River, centered in the Kamiah Valley. There were also composite bands in the Lapwai area; at the mouth of the Grand Rone River; at the confluence of the Clearwater and Snake Rivers; in the Wallowa Valley; and in the Whitebird area along the Salmon River. The composite bands had no single head chief or permanent council.
The Nez Perce shaman also exerted a great deal of political influence and Deward Walker writes:
“In fact, a good argument probably could be made for this being the single most powerful leadership status.”
Deward Walker goes on to report:
“Because of the charismatic character of Nez Perce ability, whether political, economic, or religious, the shaman frequently was thought to be an all-around leader. When compared with the temporary and situationally specific authority exerted by other specialists such as war leaders, hunting, root-digging, and fishing specialists, of the specialists in the care of horses, the authority of the Nez Perce shaman was extensive.”
Deward Walker writes about Nez Perce social control:
“It was marked by a conspicuous absence of individuals or groups with delegated authority to settle disputes and punish offenses.”
In his book Chief Joseph and the Flight of the Nez Perce: The Untold Story of an American Tragedy, Kent Nerburn reports:
“No one would presume to tell another how to believe or live, and none could speak for another unless appointed to do so.”
The Treaty Council
Following the Constitution, the United States recognized Indian nations as sovereign entities and thus negotiated treaties with them. In negotiating treaties with Indian nations, the American negotiators viewed the treaties, and the Indians themselves, as being temporary. Knowing that Indians were destined to vanish, the Americans generally viewed treaties as a way of increasing the pace of assimilation and the destruction of Indian cultures. When it came to the process of negotiating the treaties, the United States made little effort to understand the nature of Indian government. In addition, the American negotiators preferred to deal with dictatorships rather than democracies. Since almost no Indian nations were dictatorships, this meant that the United States simply appointed the people with whom they wanted to negotiate as “chiefs,” even if they were not considered as such by their bands.
In 1855, the Nez Perce had negotiated a treaty with Governor Isaac Stevens which secured their ownership of a large reservation as well as a guarantee that they could continue to hunt off the reservation. According to this treaty, the reservation was to be closed to non-Indians. In 1863, American negotiators met with the leaders of several Nez Perce bands—it is important to note that not all bands were represented—to negotiate a new treaty which would reduce the size of the reservation, placing potential gold mines and good farming areas outside of the reservation. The meeting took place in Lapwai, Idaho and, in addition to Nez Perce leaders and American government officials, was also witnessed by several newspaper reporters.
At the Lapwai Council, the American negotiators regarded Lawyer (Aleiya; 1796-1876), a pro-American chief who spoke English and could read and write, as the principal Nez Perce chief. During the treaty council Lawyer reminded the Americans that they had broken the 1855 treaty. He said:
“You have broken the treaty, not we. When you broke through the treaty, it did not make my heart sad or sore, I only wondered why you did it. Now, I am called on to look upon this proposition of yours after the Americans have broken the treaty so often.”
The American Indian agent addressed the council:
“We come as your friends, to advise with you, and to arrange for the preserving of your rights. As your friends we propose to you to relinquish to the United States a part of your present Reservation, and to take a new Reservation, smaller than the one you now hold. We also propose that on this new Reservation, each man or family shall have a piece of land in their own right [severalty], in their own name, just as the Americans do.”
He also said:
“We intend to act with perfect justice towards you, in the sight of God.”
In the treaty negotiations it was evident to all that there was a rift between the treaty faction lead by Lawyer and several other bands. At the end of the negotiations, Big Thunder made a formal announcement that his people wished no further part in the treaty and declared that the Nez Perce Nation was dissolved. Big Thunder shook hands with Lawyer telling him that they would be friends, but hereafter they would be a distinct people. According to historian Alvin Josephy, in his book The Nez Perce Indians and the Opening of the Northwest:
“In a formal manner, all of the headmen, including the members of the Lawyer party, had agreed that Lawyer no longer had the right to regard himself as spokesman or head chief of the anti-treaty bands.”
One newspaper, the Daily Union, reported:
“It appears there is a feud between the Lawyer and Big Thunder party. So antagonistic are they that one of Lawyer’s Chiefs said the other day that Big Thunder hated them as bad as the Blackfeet, and this misunderstanding seems to be irreconcilable.”
Another newspaper, the Daily Oregonian, reported it this way:
“There seems to be great animosity between the bands of ‘Lawyer’ and ‘Big Thunder.’ So much that they hate each other as much as they do the Blackfeet, and until this difference is reconciled, the chances of making a successful treaty seem very slim.”
The Washington Statesman in Walla Walla reported:
“Big Thunder and his band have thus far refused to treat, and it is though they will take no part in the Council. Eagle-from-the-Light and Joseph’s bands are with Big Thunder and had not at last accounted made their appearance at the Council grounds. There has long been a feud between these bands and that of Lawyer—they never recognizing Lawyer as a Chief.”
One of the popular rumors among non-Indians at this time was that Confederate agents had been talking to the Indians and stirring up trouble against the American treaty council. The Bulletin, a San Francisco newspaper, reported:
“It is generally believed here among loyal citizens that some of Jeff Davis’s disciples have been at work among these Indians, endeavoring to poison their minds against the Government of the United States, and thus prevent them from making a treaty for the cession of a portion of their present reservation.”
The Wallamwatkin band, led by Joseph (the elder), did not attend this treaty council and did not sign this treaty. Chief Joseph (the younger), whose band lived in Oregon, would later put it this way:
“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.”
While the Wallamwatkin felt that the treaty did not affect them, the United States felt that it had acquired title to the Wallowa Valley in Oregon.
The Treaty
The treaty negotiated at the Lapwai Council created a new, smaller Nez Perce Reservation at Lapwai. The purpose of the treaty was ostensibly to protect the Nez Perce from illegal non-Indian settlement in their territory. The size of their territory was reduced. It was not signed by all of the Nez Perce chiefs, but only by the government appointed head chief (Lawyer) and the subchiefs whose bands were within the area of the reduced reservation. While 51 men signed the treaty to give it the appearance of having the support from all of the Nez Perce bands, the signatures of those who lived outside of the reservation are not obtained.
In the treaty, the Nez Perce gave up nearly 7 million acres and retained only 785,000 acres for themselves. All the bands were to move to the new reservation within one year after the treaty was ratified. The Americans boasted of the value of the land given up by the Nez Perce.
One of the American participants in the council, Captain George B. Curry, reported:
“Although the treaty goes out to the world as the concurrent agreement of all the tribe, it is in reality nothing more than the agreement of Lawyer and his band, number in the aggregate not a third part of the Nez Perce tribe.”
The Nez Perce Tribe, in their book Treaties: Nez Perce Perspectives, puts it this way:
“This treaty was signed by the Nez Perce leaders who resided within the proposed boundaries of the new reservation, but it was absolutely and flatly denied and rejected by the leaders outside the boundaries of the proposed reservation.”
Historian Alvin Josephy, in his book Nez Perce Country, sums up the new treaty this way:
“The new treaty was fraudulent on the part of both Lawyer and the commissioners. The latter had practiced coercion, bribery, and deceit, and though Lawyer later protested lamely that he had not meant to sign on behalf of the absent bands, his conduct belied that assertion.”
After the Council
Once a treaty has been negotiated and signed, it must be ratified by the Senate and proclaimed (i.e., signed) by the President. It is only at this point that the treaty takes effect. However, it has been common for the United States to act as if the treaty is in effect as far as the obligations of the Indian nations are concerned as soon as it is signed. Following the treaty council and before ratification, the lands ceded by the 1863 Nez Perce treaty were opened for American settlement.
Following the treaty council, the army commander at Fort Lapwai on the Nez Perce reservation was sent the following order:
“You are directed to protect—with a strong hand, and in the most-prompt-and vigorous manner, the Indians from all encroachments and aggressions.”
The army commander was also ordered to prevent the sale of liquor to the Indians.
The 1863 treaty with the Nez Perce was ratified by the Senate and signed by the President in 1867. Lawyer’s response to the news of the ratification:
“The treaty of 1855 has not been lived up to, and we have no faith that this will be lived up to.”
Indians 101
This series, posted on Tuesdays and Thursdays, presents a wide range of American Indian topics. Portions of the histories presented in this series may not conform to the Christian nationalist mythology of American history. More American Indian histories from this series:
Indians 101: Gold and the Nez Perce
Indians 101: Heathens on the Nez Perce Reservation
Indians 101: Imposing Laws on the Nez Perce
Indians 101: America's Christian General confronts the Nez Perce
Indians 101: An imaginary war
Indians 201: First U.S. treaties with the Navajo
Indians 201: The 1854-1855 Western Washington Treaties
Indians 101: The 1851 Fort Laramie Treaty