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Page:Harvard Law Review Volume 2.djvu/191

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INDIANS AND THE LAW.

173

sense. . . . How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction/

" The recognized relation between the parties to this controversy, therefore, is that between a superior and an inferior, whereby the latter is placed under the care and control of the former, and which, while it authorizes the adoption on the part of the United States of such policy as their own public interests may dictate, recog- nizes, on the other hand, such an interpretation of their acts and promises as justice and reason demand in all cases where power is exerted by the strong over those to whom they owe care and protection. The parties are not on an equal footing, and that in- equality is to be made good by the superior justice which looks only to the substance of the right, without regard to technical rules framed under a system of municipal jurisprudence, formulating the rights and obligations of private persons, equally subject to the same laws.

"The rules to be applied in the present case are those which govern public treaties, which, even in case of controversies between nations equally independent, are not to be read as rigidly as docu- ments between private persons governed by a system of technical law, but in the light of that larger reason which constitutes the spirit of the law of nations."

During this second period, however, the power of the Executive directly or indirectly to control the Indians by keeping them upon the reservation, and, so far as necessary for the interests of the government, maintaining order there, was fully recognized and es- tablished ; and this stage of progress naturally led to what we may indicate as the third period, continuing from 1871 to 1886-7, — the period of confinement on reservations under executive control. The commencement of this period is marked by the statute of 1871 (U. S. R. S. section 2079) putting an end to the power of the Ex- ecutive to make treaties with Indian tribes ; and the consummation of the period in 1886 is marked by the final and conclusive estab- lishment of the Legislative power over Indians as individuals, by the decision of the Supreme Court of the United States in the case already mentioned of the United States v. Kagama. It was there held in effect that it is competent for the United States to make a criminal code for Indians upon their reservations ; and by parity of reasoning it is equally true that the United States may pre*