In May 1862 the pioneer Senator J. W Nesmith of Oregon made it official, delivering one of the most notoriously nefarious speeches in the history of the great House. He spoke movingly of the raw deal the Nez Perce had been handed in recent years: their lands had been overspread, in violation of the 1855 treaty, their compensation had been late, derisory and often stolen, and should they ever breach their admirable pact of non-violence against the white man they faced immediate ‘exterminating war’. The only fair solution was an obvious one — as the United States was clearly incapable of keeping its legal obligations, a new treaty must be negotiated. And, as a bonus, such a pact could generously relieve the Nez Perce of their burdensome millions of acres: ‘The Indians are anxious to dispose of the reservation and remove to some point where they will not be intruded upon…’
The Senate concurred. A new treaty council was called for May 1863.
The precise details surrounding the council of 1863 remain shrouded in a fog of resentment and recrimination even to this day. What’s certain is that the United States negotiators, led by Calvin H. Hale, arrived with an ambitious shopping list — they intended to secure at least 90 per cent of Nez Perce land for white settlement -and a well-worn but effective playbook. Speaking with the original forked tongue, Hale opened the council by addressing himself to ‘the whole Nez Perce nation’ — despite the fact that many of the tribe’s more implacable bands, such as those of Tuekakas and White Bird, had yet even to reach the treaty grounds. His tactics were transparent — to drive a decisive wedge down the fault line that had been now growing in the Nez Perce community for a generation, between those who had embraced Christianity, modernity and a mercantile relationship with the whites and those who had favoured tradition and isolation.
The Nez Perce had indeed arrived in a fractured state, argument over religious orthodoxy and submission to United States’ law compounded by resentment over Chief Lawyer’s status as spokesman for the nation, and by perceptions of uneven generosity from the scarcely competent Indian Agents. But the tribe’s capacity to talk a problem into a solution revealed itself once more, and a united front was eventually formed. The Nez Perce, still represented by Lawyer, offered to sell the gold fields and the land around Lewiston to the government, but to retain the remainder of the territory which Stevens had promised would be theirs for eternity. It was a sane and fair proposal, which received a prompt response — Hale and his cronies began tirelessly sowing division. They held private meetings with the leaders of the Christian bands, emphasizing the generous compensation on offer, often including the promise of a large chief’s home and personal salary, showing them that the new shrunken reservation would displace others but in fact protect their village’s homelands, and reminding them of the eternal fires that awaited the heathen hold-outs. By contrast the traditionalist tribes were insulted in public, ignored in private session, threatened with penury and oppression as the only alternatives to submission and conversion. At the forefront of this noxious campaign was a familiar face, that of Henry Spalding, recently returned to his Lapwai mission having failed in his efforts to organize a fortune-raising expedition to the gold fields, and now using all his fire and brimstone to condemn the non-Christian tribes whom he had come virulently to detest. Even his old friend Tuekakas was declared damned.
Under such pressure, the fragile consensus between the disjointed bands collapsed. The gap between those who saw the new demands as onerous but bearable and those who felt them simply inconceivable was growing ever wider. At a marathon overnight tribal council, the leaders regretfully agreed that they could no longer act in unison — those bands who wished to sign a new treaty could do so, those who wished to head home and deal with the government later (or preferably never) would not be bound by what was agreed without them. Tuekakas, White Bird and others packed up their lodges and left.
Hale acted decisively and gleefully. The treaty was drawn up, handing over just under seven million acres of Nez Perce land to the US government, reducing the reservation by 90 per cent. The nugget of retained property surrounded most of the Christian bands around Lapwai and the Clearwater River, while the government claimed ownership of Tuekakas’ beloved summer and winter valleys of the Wallowa and Inmaha rivers, the White Bird band’s territories around the bountiful Salmon River, the elk and deer ranges of the great valley of the Snake River, much of the wide root-harvesting fields of the Wieppe and Camas Prairies, and the Lolo forest with its routes to the buffalo grounds. Hale then cobbled together fifty-one signatories, led by Lawyer and drawn almost exclusively from the Christian bands (there were fifty-six marks on the 1855 treaty, and Hale was clearly collecting Xs to make this new document appear just as universally accepted as that one — always eager to assist, Spalding signed) and brazenly declared that the entire Nez Perce nation had expressed its will. The reality is cloudy in some cases — a few dissident leaders may have agreed with the treaty but refused to sign out of personal resentment towards Lawyer — but is crystal-clear in others. The White Bird and Tuekakas bands, for example, had just had their homelands sold on their behalf, without a single village member being in attendance, let alone in agreement. Not for nothing is the 1863 compact still called the Thief Treaty.
That Hale, Spalding and their crew were acting in wholly bad faith is beyond debate, but the more complex and divisive figure in this scene is Chief Lawyer. Records of the discussions show that he made no effort to explain to the Americans that he no longer spoke for the whole tribe. Why did he comply with the conceit that the unified Nez Perce were still being represented, even after the dissident bands had left the treaty grounds? The least favourable explanation is preferred by many of the descendants of the bands whose land was lawlessly sold, whose characterization of Lawyer bears comparison with that of Napoleon the pig in George Orwell’s Animal Farm, corrupted until he became indistinguishable from his oppressors.
Chief Lawyer, seated centre, representing the Christian Nez Perce at a treaty amendment in 1868.
Lawyer was certainly on friendly terms with many white arrivals, particularly Spalding, and as a tribal leader he was legally entitled to a salary and house from federal money, but tenacious rumours of further enrichment also persisted. Some believed he’d taken a bribe to accept the construction of a ferry and warehouse at Lewiston; another evocative story tells of a young Nez Perce, Paukalah, stumbling into the local Indian Agent’s office one night to find Lawyer counting a tableful of gold coins by lamplight. Whatever his fiscal circumstances, it seems reasonable to state that Lawyer’s frequent outbursts of fury at the mistreatment of his people, particularly regarding the laughable failure to fulfil all those treaty promises of schools, doctors and farm equipment, demonstrated that he hadn’t sold out the Nez Perce. A complicating consideration, though, is the disintegration of his relationship with the other tribal leaders. The trust between the bands