In July 1876, a delegation authorized by Brigadier General Oliver O. Howard, commanding the Military Department of the Columbia at Portland, met at Fort Lapwai with the various bands of Nez Perces to discuss the complaints of Joseph's people. Howard's assistant adjutant general, Major Henry Clay Wood, chaired the proceeding. [28] Approximately forty Nez Perces attended, among them Reuben, who had succeeded the deceased Lawyer to represent the treaty Nez Perces. Old Joseph's two sons, Joseph and Ollokot (Frog), represented the nontreaty group. Bound by the dead chief's admonition to "never sell the bones of your father and mother," the sons reiterated their claim to the Wallowa, called for the removal of white settlers therefrom, and urged that the murderers of the Nez Perce be punished for their crime. After prolonged consultation, Major Wood promised indictments in the murder case and that Nez Perce witnesses would be called. Wood agreed with Joseph's claims respecting the Treaty of 1863, opining that "insofar as it attempts to deprive them [Joseph's people] of a right to occupancy of any land, its provisions are null and void." At the conclusion of the council, General Howard, at Wood's recommendation, called on the Bureau of Indian Affairs to convene a commission to devise means to extinguish Joseph's claim to the Wallowa district and to "effect a just and amicable settlement" for the murder. [29]

Commanding Officer and Staff, Department of the Columbia, ca. 1877-78. Seated, left to right: unidentified, Major Henry Clay Wood, Brigadier General Oliver O. Howard, Captain Joseph A. Sladen, unidentified. Standing, left to right: Major Edwin C. Mason, Captain John A. Kress, unidentified. Nez Perce National Historical Park, Spalding, Idaho

The delay in bringing to trial the murderers of Joseph's tribesman, reminiscent of the Ott episode, especially troubled those Nez Perces, and increasingly the tribesmen viewed with gravity the homesteaders' threat to their sovereignty in the Wallowa. On September 3, after nothing substantive had happened following the meeting with Wood, Joseph and his warriors appeared in the Wallowa Valley demanding the surrender of the two perpetrators and threatening to "burn the valley" if the settlers were not gone within a week. Anticipating an outbreak, armed citizens assembled in the valley to fight the warriors. Troops from Fort Walla Walla responded and elicited a promise of restraint from Joseph if the offenders were prosecuted. The incident, details of which were doubtless subordinated by later events, nevertheless loomed large as a manifestation of Nez Perce frustration and represented a contributory cause of the ensuing conflict. [30]

The commission of 1876, headed by David H. Jerome and including among others General Howard, met at the Lapwai Agency in November with the treaty and nontreaty Nez Perces with the purpose, for the latter, "to secure their settlement upon reservations and their early entrance upon a civilized life." At the session of November 13, Young Joseph emerged as principal spokesman for the nontreaty Nez Perces. Tall and eloquent, the thirty-six-year-old leader of the Wallowas presented a forceful yet quietly dignified countenance that inspired his followers and impressed the commissioners. Baptized at birth, the future Nez Perce leader had withdrawn with his father to the Wallowa country following the demise of the missionary movement in the late 1840s. Ever wary of the ways of whites and of the consequent difficulties that their presence posed for his people, Joseph—on assuming his father's mantle—had maintained vigilance while reasserting Old Joseph's commitment to his band. He and his younger brother, Ollokot, had tried to balance the ancestral values and needs of their people with the reality that the times presented. [31] Doubtless his position as chief of the Wallowa band—the most conspicuous nontreaty group affected by the council proceedings—and his leadership skills as perceived by whites, cast Joseph into greater prominence among all the nontreaty Nez Perces, as far as future events were concerned.

Through three days of the Lapwai council, Joseph dominated the scene. "He is in the full vigor of his manhood," reported the commissioners, "six feet tall, straight, well formed, and muscular; his forehead is broad, his perceptive faculties large, his head well formed, his voice musical and sympathetic, and his expression usually calm and sedate, when animated marked and magnetic." "An alertness and dexterity in intellectual fencing was exhibited by him that was quite remarkable." [32] When the commissioners probed the differences between the treaty and nontreaty Nez Perces, Joseph frankly explained: "At the time the [1855] treaty was made we divided. The treaty was the cause of it. From that time we have been separated. We still remain so." [33] On the issue of the Wallowa lands, which the commissioners suggested were only occasionally used by the tribesmen, Joseph imparted his people's philosophy as follows:

That which I have great affection for, I have no reason or wish to dispose of; if I did, where would I be? The earth and myself are of one mind. The measure of the land and the measure of our bodies are the same. . . . If I thought you were sent by the Creator I might be induced to think you had a right to dispose of me. Do not misunderstand me, but understand me fully with reference to my affection for the land. I never said the land was mine to do with it as I chose. The one who has the right to dispose of it is the one who has created it. I claim a right to live on my land, and accord you the privilege to live on yours. . . . I think with reference to the land. I look upon the land, made as it was, with pleasure. . . . I grew up on it, and took it as it was given me. As it was created, it was finished with power. There is nothing should supersede it. There is nothing which can outstrip it. It is clothed with fruitfulness. In it are riches given me by my ancestors, and from that time up to the present I have loved the land, and was thankful it had been given me. [34]

Any government proposals for the Nez Perces' surrender of the Wallowa lands were thus deemed unacceptable. "We are not to be trampled upon and our rights taken from us," concluded Joseph. "The right to the land was ours before the whites came among us." [35]

Rejecting this view, the commission argued that, despite past recognition of the nontreaty Nez Perces' claims that allowed their continued use of the Wallowa Valley, the acquiescence of Joseph's father to the 1855 treaty, in fact, implied the surrender of such right, rendering uncertain the Indian claim. Moreover, since the majority of the Nez Perces (i.e., the Christian bands) had sanctioned the treaty, the minority, under "the law among the whites," must also abide by it. Under this interpretation, Joseph's people and the other nontreaty Nez Perces were constrained to remove themselves within the boundaries specified in 1863. In addition, since 1859 the state of Oregon—not the federal government—claimed the Wallowa Valley, and because Oregon law now prevailed there, the people could be protected only by removing them inside the Lapwai tract.

On the matter of the killing of the tribesman in the Wallowa, a matter of great offense to the Nez Perces and for which only minimal punishment had been meted, Joseph—in a gesture of remarkable forbearance that as well conveyed an intrinsic union between the crime and the revered Wallowa—stated the following:

With reference to . . . the white man who committed the deed . . . I have come to the conclusion to let him escape and enjoy health, and not take his life for the one he took. . . . I do not want anything in payment for the deed he committed. I pronounce the sentence that he should live. I spoke to the murderer and told him I thought a great deal of the land on which he had shed the blood of one of my people. When I saw all the settlers take the murderer's part, . . . I told them there was no law in favor of murder. I could see they were all in favor of the murder, so I told them to leave the country. I told them it was of great importance. You see one of our bodies lying dead. . . [and] I cannot leave that country and go elsewhere. [36]

The commission recommended that the agent at Lapwai continue to settle the tribesmen on the reservation, but failing that, military force would be used. (A minority report contended that force could not be used until Joseph's people committed "some overt act of hostility.") To promote peace with the white settlers in the meantime, troops would be posted in the Wallowa Valley. Citing "pernicious doctrines" of the Dreamer religion as contributing to the nontreaties' stance, the commissioners urged that its leaders be removed, if necessary, to the Indian Territory (Oklahoma) to curtail their influence. [37]

The report urging the removal of the nontreaty Nez Perce to the reservation set the stage for active military involvement, but at first only to augment the work of the agents of the Bureau of Indian Affairs. In January 1877, Agent Monteith sent emissaries to Joseph reiterating the determination of the government to remove the roaming bands onto the reservation and specifying a deadline of April 1. Joseph replied: "I will not leave it [the Wallowa country] until I am compelled to." In March, the War Department, responding to the Lapwai recommendations delivered through the Interior Department, ordered Major General Irvin McDowell, commanding the Military Division of the Pacific at San Francisco, to implement the removal. Because of its sensitive nature, McDowell directed General Howard to give the removal his personal attention, notifying him "to occupy the Wallowa Valley in the interest of peace. You are to comply with the request of the Department of the Interior . . . to the extent only of protecting and aiding [its agents] . . . in the execution of their instructions." [38]

Howard responded immediately, directing that—when weather permitted—two companies of the First Cavalry under Captain Stephen G. Whipple be sent from Fort Walla Walla to establish a camp at the west entrance of the Wallowa Valley near the Grande Ronde River. The location was strategic, the companies to be posted "as near the crossing of the Wallowa River as may be practicable, consistent with a comfortable and pleasant camp—a camp to debouch from." An outpost established close by would protect the Wallowa bridge from destruction by the Nez Perces. Howard ordered frame buildings erected for the troops, who would oversee two Gatling guns and secure requisite ammunition at the site. [39] Although placing troops only in the Wallowa country, Howard directed his efforts toward the removal to the Lapwai reserve of the following Nez Perces:

Joseph's Band, of Wallowa Valley; the Hasotims, on a creek of that name south of the Snake River; the White Bird Indians, located on Salmon River, north of the Snake; and the [Palouse] band of Hush-Hush-Cute [Husis Kute (Bald Head)], scattered along the Snake River to the Palouse country. These, with numerous Indians, malcontents already on or near the Nez Perces reservation, of whom, in a sense, Looking Glass appeared to be the leader, constituted what has been called in reports "The Non-treaty Nez Perces Indians." [40]

On April 20, 1877, several Nez Perces met at Fort Walla Walla with Howard. He explained the requirements of the government for the people to remove to the reservation, although the tribesmen would be permitted to hunt and fish periodically in the Imnaha country. While Joseph did not attend, his brother, Ollokot, tried to convince the general of the people's right to remain at Wallowa. "This is where we were born and raised," he said. "It is our native country. It is impossible for us to leave." To Ollokot's protests, Howard replied only that the people must move. [41]

To hasten that process, Howard agreed to meet with Agent Monteith and representatives of the nontreaty Nez Perces at Fort Lapwai in May and impress upon them "the unalterable purpose of the Government." As a contingency, and doubtless to intimidate the Nez Perces, Howard postured cavalry at Lewiston and near the junction of the Grande Ronde River with the Snake. Elsewhere, more troops assembled to be brought forward if needed. The councils were bitter and turbulent. Alarmed by the message from the Fort Walla Walla meeting, about fifty Nez Perces appeared on May 3 with Joseph and Ollokot, who requested that the proceedings be delayed until White Bird and his people arrived. Howard was adamant that the council begin, and he warned the Nez Perces that, while he was prepared to listen to them, "in any event, they were to obey the orders of the Government of the United States." Agent Monteith read aloud his instructions from Washington, and they were interpreted to the Indians. The Nez Perces, said Monteith, had not responded to his previous invitation to come. Now they must do so. Howard told them that hunting and fishing privileges in the Imnaha Valley were to be granted once the tribesmen settled on the reservation, but he counseled that further delay would cause troops to be sent after them. [42]

On Friday, May 4, the people reconvened with some of White Bird's band in attendance, along with members of other treaty and nontreaty bands. At this session, a confrontation flared between Howard and Toohoolhoolzote, spiritual leader of the Pikunans and a noted orator among his tribe, as the aged warrior tried to explain to Howard the Nez Perce concept of land. Dismissing Toohoolhoolzote as "a large, thick-necked, ugly, obstinate savage of the worst type," the general, with Joseph's concurrence, ordered the meeting adjourned. In his memoirs, Howard recalled, "the Indians at this meeting gave clear evidence that they did not intend to comply with instructions from Washington." [43] On May 7 the council resumed with more of the nontreaty people in attendance. Once again, Toohoolhoolzote held sway, haranguing Howard and Monteith about Nez Perce beliefs respecting their lands. A significant exchange took place, one that explained much of the essence of the nontreaties' position, but which was either misjudged or ignored by Howard, who was determined in his orders. As Howard recounted:

[Toohoolhoolzote] repeats what he had said at the other council about chieftainship—chieftainship of the earth. . . . I answer, "I don't want to offend your religion, but you must talk about practicable things; twenty times over I hear that the earth is your mother and about chieftainship from the earth. I want to hear it no more, but come to business at once." The old man then began to speak about the land and became more impudent than ever, and said, . . . "You white people get together and measure the earth and then divide it, so I want you to talk directly what you mean." . . . The old man, in a surly way, asked, "What person pretended to divide the land and put me on it?" I answered, with emphasis, "I am that man. I stand here for the President, and there is no spirit, good or bad, that will hinder me. My orders are plain, and will be executed." [44]

After concluding that both Looking Glass and White Bird subscribed to these views, Howard reminded the Nez Perces that, for him, the only question that needed answering was, "will the Indians come peaceably on the reservation, or do they want me to put them there by force?" When Toohoolhoolzote persisted in his argument, Howard peremptorily ordered him arrested, led from the assembly, and jailed. (He was released several days later.) The action violated council protocol and infuriated the Nez Perces, but Joseph counseled patience. He later recalled: "I knew if we resisted that all the white men present, including General Howard, would be killed in a moment, and we would be blamed." [45] With the old man removed, the Nez Perces, despite evident misgivings, agreed to inspect the reservation lands. Resignedly, Joseph, Looking Glass, and White Bird the next day rode up the Lapwai Valley with General Howard, observing the tidy farms of many of their treaty kin. At one point, wrote Howard, Joseph allowed that "When I come on the reservation I want a good frame house." [46] But Joseph recalled that "we rode all day upon the reservation, and found no good land unoccupied." [47] On Wednesday and Thursday, Looking Glass and White Bird, again accompanied by Howard, traveled to the Clearwater Valley, where their bands were destined to settle. Looking Glass, recalled the general, "indicated great delight at the peace prospects." [48] Overlooking the valley of the Clearwater on the evening of May 9, the group, wrote Howard, "beheld the best evidence of Indian civilization in the numerous farms on both sides of the river and along the creek, dotted with real houses, and well fenced and planted." [49]

The Fort Lapwai council concluded on May 15. By then, the troops from Lewiston had arrived to effect a show of force. The Nez Perces, reported Howard, agreed to come on the reserve and were assigned tracts as follows: Joseph's band would settle on the upper Middle Clearwater, as would White Bird's band. Husis Kute and the Palouses would also go to the Clearwater, while Hasotin's people would move to the area of the Sweetwater, a tributary of Lapwai Creek. The people were granted thirty days in which to gather their livestock and relocate onto the reservation. Joseph recollected that Howard told them: "If you are not there in that time, I shall consider that you want to fight, and will send my soldiers to drive you on." [50] When White Bird allowed that he could not always control his people who got liquor from the whites, and that he feared those so affected might not come on the reservation, Howard assured him that his soldiers would be ready to assist in bringing them in. [51] The general concluded: "Having now secured the object named, by persuasion, constraint, and such a gradual encircling of the Indians by troops as to render resistance evidently futile, I thought my own instructions fulfilled." [52] Howard returned to Portland, confident that the Nez Perces would respond by the appointed deadline and that trouble would be averted.

General Howard's expectation that the nontreaty Nez Perces would comply with the Lapwai directive was grounded in his own confidence in his ability to deal with Indians. Forty-six years old in 1877, Howard had enjoyed a diversified, if unspectacular, military career. A Maine native, he had graduated near the top of his 1854 West Point class, and he eventually served at the military academy as professor of mathematics. He saw early duty against the Seminole Indians, but rose rapidly during the Civil War, 1861-65, leading troops at Manassas, Fair Oaks (where, wounded, he lost his right arm), Second Manassas, Antietam, Fredericksburg, Chancellorsville, and Gettysburg. Transferred west in 1863, he took part in operations around Chattanooga and during Sherman's march to Atlanta and the sea the following year. Although his performance leading troops in battle was at best mediocre, Howard emerged from the war a brigadier general with brevets up to and including that of major general.

A complex individual of passionate intellect, Howard was deeply religious and promoted prayer meetings, morality, and temperance among his commands to the extent that he was known by the sobriquet, "the Christian soldier." His professed affinity for the downtrodden, and especially for the recently freed Southern blacks, led to Howard's appointment as commissioner of the Freedmen's Bureau after the war. His administration was controversial and marked by disharmony, but his advocacy of educating the former slaves led to the establishment of Howard University. Howard thereafter took an extreme interest in Indian affairs and Indian rights. His colleague, Brigadier General George Crook, wrote that Howard once told him that "he thought the Creator had placed him on earth to be the Moses to the Negro. Having accomplished that mission, he felt satisfied his next mission was with the Indian." [53] Thus divinely ordained, Howard believed that the Indians should be dealt with through trust and peaceful means, and only lastly through force—a belief that Crook and most other officers on the frontier thought naive. In 1872, his negotiations with the Chiricahua leader, Cochise, produced a tenuous peace in the Southwest, and since 1874, as commander of the Department of the Columbia (which comprised the state of Oregon and the territories of Washington, Idaho, and Alaska), Howard had worked to effect lasting peace among the tribes in that region. [54] When he departed Fort Lapwai in May 1877, it was with the conviction that he had allayed problems with the nontreaty Nez Perces. Yet Howard's diplomatic competence with the Indians was one thing; dealing with them in battle and on a protracted military campaign was quite another, as the events of 1877 soon proved.