Kate and Sue McBeth, Missionary Teachers to the Nez Perce

When the council convened at Lapwai on May 25, 1863, none of the anti-white bands was present. The American commissioners included Calvin H. Hale, the Superintendent of Indian Affairs in Washington Territory, and two Indian agents, Charles Hutchins and S.D. Howe. As their interpreters, they selected Robert H. "Doc" Newell, a former mountain man and friend of Craig who had lived with the Nez Perces from time to time, and Henry Spalding, the former missionary who had been living in eastern Washington since 1859 and was now 60 years old. . . . Lawyer and some of his headmen, however, felt that neither Newell nor Spalding had a good enough understanding of the Nez Perce language and, before the council started, prevailed on Hale to replace them with Marcus Whitman’s nephew, Perrin, who had spent considerable time with the Nez Perces, but who now lived on the lower Columbia River. To make "a good effect" on the Indians and give support to the Commissioners, six companies of troops . . . were also present, stationed at nearby Fort Lapwai.

While Perrin Whitman was sent for from his home, and in the absence of the anti-Lawyer bands, Spalding was allowed to interpret, and Hale opened the council by coming directly to the point. He told Lawyer and his headmen that he wanted the Nez Perces to compress themselves on a much smaller reservation, about one-tenth the size of the one they then possessed, based on the Clearwater, its South Fork, and the Lapwai Valley, and situated tightly between the northern and southern mining districts. Those mining areas, together with all the rest of the Nez Perce reservation as constituted in 1855, would be purchased by the government and opened to whites. The bands would be paid for improvements on the lands. Moreover, the area within the new smaller reservation would be surveyed into 8-hectare (20-acre) lots, and one would be given to each family to farm "just as whites do."

Few of Lawyer’s followers would be affected, for most of their lands lay within the boundaries of the proposed new reservation. But the idea of bringing anti-Lawyer bands in among their own people stunned the assembled headmen. They would all be squeezed together, and there would be fights and endless turmoil. . . . Responding, . . . U-tsin-ma-likh-kin, the pro-Lawyer chief from Kamiah, and Lawyer questioned whether the commission actually spoke for the American government and pointed out that it was not adhering to the 1855 treaty and still owed the Nez Perces for the land the Indians had sold to the United States at that time. After several days of reviewing the Stevens treaty, during which Hale was forced to admit the government's delinquencies, Lawyer made a long and eloquent speech, relating the many times the Nez Perces had helped the Americans, asking for payments only for the ferries the whites were operating and the towns they had built on Nez Perce territory in violation of the 1855 treaty, and stating firmly that the Nez Perces could sell no more of their lands. Hale could not argue the head chief or his followers out of their position, and the council recessed for six days.

By the time it reconvened on June 3, a number of anti-Lawyer bands, including those of Joseph, Eagle From The Light, White Bird, and Red Owl, had arrived. Joined with them, also, was Thunder Eyes, who was against accepting the new reservation even though his Lapwai Valley lands would not be affected. He resented Lawyer, who had taken up residence on Thunder Eyes’s land at the mouth of the Lapwai and was asserting a galling domination over the elderly chief. Perrin Whitman had also arrived, and he took over from Spalding as interpreter. After repeating his proposal for the newly arrived bands, Hale took a new tack, explaining that he wanted the bands to move together for their own safety. The government, he insisted speciously to the headmen, could not protect them from the aggressive miners if they remained spread widely apart. The chiefs listened patiently, then the leaders of both factions retired to a council of their own. When they returned, they announced that they would sell the land on which Lewiston was situated and the areas where gold had been found, but they could not further reduce the reservation.

Hale had reached an impasse with them and after the council adjourned, he decided, as he wrote to Washington, to try "private conferences. . . . In other words, he would pressure them, one by one. Beginning with "the leading chiefs of the friendly Indians," Lawyer and his individual headmen, he worked on them that night in private sessions. With the help of Spalding and Whitman, he hammered at them persuasively, exploiting their jealousies and divisions and offering gifts and favors until, individually, they agreed to sign the treaty. His principal argument was that none of them would lose anything, for all their villages, save those of Timothy and Jason, lay within the new reservation. Since Timothy and Jason were considered to be almost white men, Hale agreed that they both could stay where they were on their farms at Alpowa, outside the reservation, and he promised them money with which to build themselves new homes.

His success with the Lawyer faction almost came apart the next day. The anti-Lawyer headmen learned what was happening, and during the day Hale found some backsliding among those who had given him their word the night before. In renewed private talks, he managed to regain their acceptance of the treaty, but by then, the anti-Lawyer headmen deeply resented Hale’s tactics. That night, the leaders of both factions held a council. A soldier on the grounds overheard some of the deliberations and reported that "the debate ran with dignified firmness and warmth until next morning," when Thunder Eyes, speaking for the anti-Lawyer chiefs, "with a warm and in an emotional manner, declared the Nez Perce nation dissolved; whereupon the Big Thunder [Thunder Eyes] men shook hands with the Lawyer men, telling them with a kind but firm demeanor that they would be friends, but a distinct people."

It was a further, and definitive, confirmation of the splitting of the Nez Perces into two factions, which thereafter became known as "the treaty group" and "the non-treaty group." The next morning, Joseph and White Bird, neither of whom had said anything during the two sessions of the council they had attended, left Lapwai with their people and went home. Before his departure, Joseph tore up his copies of the Stevens treaty of 1855 and the Gospel of Matthew, which Spalding had printed at Lapwai years before and given to him when he had first baptized him, and which Joseph had carried with him ever since. . . . Neither he nor White Bird had any intention of selling their lands, which lay outside the new reservation’s boundaries, and it would never have occurred to them that anyone who remained behind at Lapwai, including Lawyer, would have asserted the right to speak for them or assumed an illegal authority to sign away their lands in their absence. . . .

That, however, is just what happened. After Joseph and White Bird left, the commissioners went to work on Thunder Eyes, Eagle From The Light, and the few other remaining anti-Lawyer headmen, charging them with "disloyalty" and threatening them with severe punishment and humiliation if they refused to sign the treaty. The brow-beating was unconscionable, but finally worked. Aided by Newell, the commissioners convinced the holdouts that their own lands lay within the new reservation and they would lose nothing. One after the other, they assented to the treaty, though to demonstrate their independence of Lawyer, they won the right not to have to put their marks on the document. On June 9, Lawyer and 51 members of his faction signed the treaty. Since there had been 53 headmen of both factions at the night session when the tribe had divided, and none of the anti-Lawyer group signed, it was evident that Lawyer had rounded up a number of his lesser men to sign.

Hale immediately informed the Commissioner of Indian Affairs in Washington how cheaply he had accomplished his mission: "Nearly six million acres . . . obtained at a cost not exceeding eight cents per acre," he wrote proudly. Later surveyors claimed that he had gotten 2,804,786 hectares (6,932,270 acres) from the Nez Perces in Idaho, Oregon, and Washington and left the Nez Perces with 317,611 hectares (784,999 acres), slightly more than 25 percent of the 1855 reservation. But he had raised a large question that would spell trouble in future years—and still causes bitter conflict. He had conferred on Lawyer the right and obligation to speak for all the bands and to sign away all the lands of Joseph, White Bird, and every other Nez Perce, save Timothy and Jason, who lived outside the new reservation. Lawyer had neither objected to that act nor explained that he did not possess the right to do what he had done. On the contrary, there is evidence that Lawyer had come to the conclusion that he wanted the non-Christians on the reservation, where he and the agent—and the troops, if necessary—could control them. Again and again, he had complained about the bad influences that the young men of the anti-Lawyer bands had on his own people. In their own countries, they lived beyond the reach of the authority of the laws and the Americans. If they were forced onto the reservation, they could be punished and taught the right ways to behave. With the help of the agent, he also could more easily bring their headmen and chiefs under his own domination.

The treaty he signed gave the bands one year after its ratification to move onto the reservation. Tillable lands on the reservation would be allotted, and the tribe would hold the rest of the land in common. The government would only have to pay the tribe $265,000 for all the ceded land, and more than half of it would be appropriated in four installments to fund the moving of the off-reservation bands and to pay for the preparation of the allotments . . . In addition, funds were promised for agricultural equipment, a sawmill, a schoolhouse, headmen's houses, a blacksmith shop, salaries, and the payment for the horses used in the wars of the 1850s—a reiteration of the same promises, still unkept, that had been made by the Stevens treaty. . . . Finally, the Nez Perce signatories had agreed that the whites could build roads, ferries, and other public improvements, as well as inns for the miners anywhere on the shrunken reservation.

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 in behalf of the absent bands, his conduct belied that assertion. Word that he had signed for the entire tribe was conveyed to Washington without qualification, and Lawyer never straightened out the record. . . . (pp. 102-107)