The only two tests suggested are those of steam and water. The first, by reason of its danger, is shown rarely, if ever, to have been resorted to by railroads, or other companies using steam-boilers. It is neither practicable nor approved, because it serves to bring about the very thing it was intended to prevent. The one question then is, whether the company was guilty of a want of ordinary care by failing to resort to the water or hydraulic test, which consisted in applying a certain number of pounds pressure of water to the boiler by the aid of a suitable pump. It is testified by experts that such tests, when made, are liable to strain the fiber of the iron and impair the strength of the boiler, and thus in themselves tend to increase the hazard of explosion. The application of the hydralic test, moreover, involved the stripping of the lagging on the outside of the boiler, and the removal of the flues from the boiler, a taking to pieces of the boiler, so to speak.

We conceive the correct and just rule to be, that a railroad company's duty to its employees does not require it to adopt every new invention or appliance useful in its business, although it may serve to diminish risks to life, limb or property, incident to its services. It is sufficient fulfillment of duty to adopt such as are ordinarily in use by prudently conducted roads engaged in like businesses, and surrounded by like circumstances. Nor can it be exacted of such common carriers, that they should adopt extraordinary tests for discovering defects in machinery, which are not approved, practicable and customary. They are not responsible for accidents from defects not discoverable by tests which are both practicable and usual, and such as persons of ordinary prudence, engaged in like business, are accustomed to adopt under similar circumstances. The law is reasonable and does not require such excess of caution, as to embarrass or render impracticable the operation of the road, although the degree of care and vigilance required is not to be made dependent upon the pecuniary condition of the company so as to expand or contract with the fluctuations of its finances. Pierce on Railroads, 273, 274; Lake Shore R. Co. v. McCormick, 74 Ind. 440; Grand Rapids, etc. R. Co. v. Huntly, 38 Mich; 537; Smoot v. M. & M. R. Co., 67 Ala. 18; De Craff v. New York Central, etc. Railroad, 76 N. Y. 130.

The evidence shows without conflict that the hydraulic test, as applicable to steam-boilers, was an extraordinary and rare test, not in customary or common use by either railroads, or other persons, except when engines were first manufactured to be put on the road, unless they failed to work well; or except when engines were overhauled periodically in the workshops of the company.

It may be said that the engine here in question was repaired or overhauled in February, 1883, and that this was negligence. The answer to this suggestion is furnished by the record. This repairing was done about ten months prior to the

happening of the accident from which the injury occurred to the deceased, and there is no evidence tending to prove that the defect in the boiler existed at that time. On the contrary, the testimony shows, that it could not have existed longer than from two to six months. The failure of the company, therefore, to apply the hydraulic test ten months previous, if a negligence at all, had no proximate causal connection with the injury. The use of the test would not have discovered the defect.

Our conclusion is that the deceased was injured by a mere misfortune or accident, which he assumed as a risk of the business in which he was employed, and which was in no wise attributable to the negligence of the defendant or its servants. The evidence showing these facts clearly and without conflict, the court erred in refusing to give the general charge to find for defendant.

Reversed and remanded. CLOPTON, J., not sitting.

against

NOTE.-Railroad Company-- Warranty Accident.-An employer may always be held liable for injuries arising from his own fault or negligence.1 The law imposes upon him the duty of seeing that the servant shall be under no risk because of inadequate or defective machinery to the extent of reasonable care and prudence, no matter whether the defects are in the original construction of the machine or arise from want of repair.2

The relationship of employer to employee does not involve a guaranty by the employer of the employees safety. Neither is there an implied warranty that the machinery furnished shall be sound or fit for service nor that the servant shall not be exposed to ordinary risks.4

The master does not guarantee the soundness of the machinery nor insure the servant against accidents; and if the latter suffers injury from latent defects unknown to the master and not discoverable in the exercise of ordinary diligence the master is not liable.5

Negligence--When Question for Jury and when for Court. The question of negligence is one of fact except in some cases when it becomes a question of law and the case may be taken from the jury. It has been held in some cases that when the facts are undisputed or conclusively proved the question of negligence is one

1 Ryan v. Fowler, 24 N. Y. 410; Keegan v. West. R. Co. 8 Id. 175; Gilman v. Eastern R. Co. 10 Allen, 236; Snow v. Housatonic R. Co. 8 Id. 441; Marshall v. Stewart, 33 E. L. & Eq. 1; W right v. N. Y. C. R. Co. 25 N. Y. 572; Noyes v. Smith, 28 Vt. 59; Faulkner v. Erie R. Co. 49 Barb. 324. 2 King v. N. Y. Cent. R. 4 Hun. 769; Warner v. Erie R. Co. 89 N. Y. 468 Laning v. N. Y. Cent. R. Co. 49 Id. 521; Coughtry v. Woollen Co. 56 Id. 126; Wright v. N. Y. C. R. Co. supra; Gibson v. Erie R. Ca. 3 Hun. 31.

3 Hadley v. Baxendale,6 H.& N. 443; Priestly v. Fowler, 3 M. & W. 1; Wright v. N. Y. Cent., supra; Tinney v. B. & A. R. Co. 62 Barb. 218.

4 Heyer v. Salsbury, 7 Brad. (Ill. App.) 93.

5 Tiefield v. Northern R, Co. 42 N. H. 225; Ormond v, Holland, El. Bl. & El. 102; L. R. & T. S. R. Co. v. Duffey. 35 Ark. 602; Galveston, etc. R. Co. v. Delahunty, 53 Tex. 206; Flyan v. Beebe, 98 Mass. 575; Ladd v New Bedford R. Co. 119 Id. 412; Gibson v. Pac. R. Co. 46 Mo.

of law. But in the McLain v. Van Zandt, a seemingly better view was adopted. It was there held, that in order to justify the court in taking the case from the jury, the facts of the case should not only be undisputed but the conclusion to be drawn from those facts indisputable whether the facts be disputed or not, some courts have held that if different minds may draw different conclusions from them, the case should properly be submitted to the jury,8

The rule has sometimes been laid down that if there be any evidence tending to prove a fact,the case should be submitted to the jury.9

The rule in England however, is laid down in Toomey v. London etc. R. Co.10 in the following language. "A scintilla of evidence or a mere surmise that there may have been negligence on the part of the defendants clearly would not justify the judge in leaving the case to the jury; there must be evidence upon which they might reasonably and properly conclude that there was negligence." This rule should be universally adopted in this country.11

Negligence of Fellow-Servant.-The rule that the employee cannot recover of his employer for injuries received by reason of the negligence of a fellow-servant, in the same general employment, is well settled.

Burden of Proof.-In an action for injuries by an employee against his employer resulting from his alleged neglect, the burden of proof is on the employee12 Where the injury is caused by defective machinery or the negligence of agents or both, the plaintiffs must also show that the defendant did not employ competent servants or sound machinery13 or that he knew of the defect or incompetency or could have known it by using diligence.14

In Rose v. Stephens & Condit Transp. Co.,15 however, it was decided that the explosion of a boiler was evidence of negligence whether there was any relation

6 Gagg v. Vetter, 41 Ind. 228; Louisville Canal Co. v. Murphy, 9 Bush. 522; Costello v. Landwehr, 28 Wis. 522; Grigsby v. Chappel, 5 Rich. L. 446; Pittsburg, etc. R. Co. v. Evans, 53 Pa. St. 250; Fleming v. West. Pac. R. Co. 49 Cal. 253; Van Lien v. Scoville Man. Co. 4 Daly, 554; Foot v. Wiswall, 14 Johns. 304; Theings v, Cent. Park R. Co. 7 Robt. 616; Biles v. Holmes, 11 Ired. 16; Dascomb v. Buf falo, etc. R. Co. 27 Barb. 221; Dublin, etc. R. Co. v. Slattery, 3 App. Cas. 1155, per Lord Blackburn.

7 7 Jones & Sp. 347.

8 Jenkins v. Little Miami R. Co. 2 Disney, 49; Stoddard v. St. Louis R. Co. 65 Mo. 514; Norton v. Ittner, 56 Mo. 351; Wyatt v. Citizens R. Co. 55 Id. 485: Railroad Co. v. Stont, 17 Wall. 657; Fernandez v. Sacramento City R. Co. 4 Cent. Law J. 82; Detroit, etc. R. Co. v. Van Steinburg, 17 Mich. 99; State v. Railroad, 52 N. H. 529; Gaynor v. Old Colony, etc. R. Co. 100 Mass. 208; McGrath v. Hudson River R. Co. 32 Barb. 144; Bridges v. N. London R. Co. L. R. 7 H. L. 213; Beers v. Housatonic R. Co. 19 Conn. 566; Vinton v. Schwab, 32 Vt. 612; Penna. Canal Co. v. Bently, 66 Pa. St. 30.

9 Cumberland, etc. Iron Co. v. Scolly, 27 Md. 589; Flori v. St. Louis, 3 Mo. App. 231.

10 3 C. B. (N. S.) 146, 150. This may be regarded as the settled law of England. See Cornman v, Eastern Coun ties R. Co. 4 H. & N. 781, 786, Bramwell B.; Jackson v. Metropolitan R. Co. 3 App. Cas. 193; Ryder v. Wombwell, L. R. 4 Exch. 38; Jewell v. Parr, 13 C. B. 916.

11 Branlien v. Portland Co. 48 Me. 291; Greenlief v. Illinois R. Co. 29 Iowa, 22; Lehman v. Brooklyn, 29 Barb. 234.

12 Wharton Neg. §428; Shear & Red.Neg. § 99; II Thom. Neg. 1053; Louisville & N. R. Co. 84 Ind. 50; Way v. 111. Cent. R. Co. 40 Iowa, 341.

13 Hanrathy v. N. C. R. Co. 46 Md. 280; See Johnson v. Armour, 18 Fed. Rep. 490.

14 Columbus, etc. R. Co. v. Troesch, 68 Ill. 545. 15 11 Fed. Rep. 438.

between the owner of the boiler and the person injured, or not. The presumption originates from the nature of the act and not the relation of the parties.

As to Adoption of New Inventions.-The master is not, under all circumstances, bound to discard one appliance and replace it with something which is safer. While there may be a moral obligation on his part to provide the latest improvements, still he is not legally bound to do so. He is only required to see that which he does employ, is safe and suitable for the purpose for which it is used.16 Some courts have gone so far as to hold that as between himself and the employee the master has the right to keep a machine in use after it has become old and defective, provided its defects do not expose the servant to some latent danger.17 But in Indiana, "It is negligence to use cars dangerous in their construction when there are others to be used which are not dangerous. Railroad companies are bound to procure the best; otherwise they must be held responsible.18 Judge Thompson in his very valuable work on negligence, lays down this rule. "The obligation of the master is one, not only of care, but of good faith. The obligation is discharged when the master fairly apprises the servant-the latter being sui juris of the nature and extent of the risks which he undertakes."'19

The cases where the failure to make tests has been alleged as negligence are few.20 Detroit, Mich.

A. G. McKean.

16 Ft. Wayne R. Co. v. Gildersleve, 33 Mich. 133; Botsford v. Mich. etc. R. Co. Id 256; Stack v. Patterson, 6 Phila. 225; West. R. Co. v. Bishop, 50 Ga. 465; Wonderly v. Baltimore, etc. R. Co. 32 Md. 4i1; Jones v. Granite Mills Co. 7 Rep. 146; Piper v. New York, etc. R. Co. 1 N. Y. (S. C.) 290; Sabbers v. Delaware Canal Co. 3 Hun. 338. 17 Hayden v. Smithville Mfg. Co. 29 Conn. 548; Kelly v. Silver Spring Co. 7 Reporter, 60.

18 St. Louis, etc. R. Co. v. Valerius, 56 Ind. 511; Citing Toledo, etc. R. Co. v. Wand, 48 Id. 476; Smith v. N. Y. etc. R. Co. 19 N. Y. 127; Hegeman v, Western R. Corp. 13 Id. 9.

19 Thomp. Neg. p. 983; Citing Dewitt v. Pacific R. R. 50 Mo. 102; Dynew v. Leach, 26 L. J. (Exch,) 221; Wonderly v. Baltimore, etc. R. Co. supra.

20 Smoot v. M. & M. R. Co. 67 Ala. 13; Nashville, etc. R. Co. v. Jane, 9 Heisk. 27; Hegeman v. West. R. Co. 16 Barb. 358; Alden v. N. Y. C. R, Co. 26 N. Y. 102.

CONSTITUTIONAL LAW-JURISDICTION OF

CRIMES-INDIANS-TRIBAL RELATIONS -AUTHORITY OF CONGRESS-STATE AUTHORITY.

UNITED STATES V. KAGAMA.*

Supreme Court of the United States, May 10, 1886.

1. Indians-Jurisdiction of Crimes-Constitutional Law. The ninth section of the Indian Appropriation Act of March 3, 1885 (Session Acts, p. 385), is valid and constitutional in both its branches, namely, that which gives jurisdiction to the courts of the territories of the crimes named committed by Indians within the territories, and that which gives jurisdiction in like cases to the courts of the United States for the same crimes committed on an Indian reservation within a State of the Union.

mentioned in the act are murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny.

3. Authority of Congress.-While the government of the United States has recognized in the Indian tribes heretofore a state of semi-independence and pupilage, it has the right and authority, instead of controlling them by treaties, to govern them by acts of Congress, because they are within the geographical limit of the United States, and are necessarily subject to the laws which Congress may enact for their protection and for the protection of the people with whom they come in contact.

On a certificate of division in the opinion between the judges of the Circuit Court of the United States for the District of California.

The facts are to be found in the opinion. The Attorney General, Mr. Garland, and the Solicitor General Mr. Goode, for plaintiff in error. Joseph D. Redding, contra.

MILLER, J., delivered the opinion of the court: The questions certified arise on a demurrer to an indictment against two Indians for murder committed on the Indian reservation of Hoopa Valley, in the State of California, the person murdered being also an Indian of said reservation. Though there are six questions certified as the subject of difference, the point of them all is well set out in the third and sixth, which are as follows: "3. Whether the provisions of said § 9 of the Act of Congress of March 3, 1885, making it a crime for one Indian to commit murder upon another Indian upon an Indian reservation situated wholly within the limits of a state of the Union, and making such Indian so committing the crime of murder within and upon such Indian reservation subject to the same laws' and subject to be 'tried in the same courts, and in the same manner, and subject to the same penalties as are all other persons' committing the crime of murder 'within the exclusive jurisdiction of the United States,' is a constitutional and valid law of the United States? 6. Whether the courts of the United States have jurisdiction or authority to try and punish an Indian belonging to an Indian tribe for committing the crime of murder upon another Indian belonging to the same Indian tribe, both sustaining the usual tribal relations, said crime having been committed upon an Indian reservation made and set apart for the use of the Indian tribe to which said Indians both belong?" The indictment sets out in two counts that Kagama, alias Pactah Billy, an Indian, murdered Iyouse, alias Ike, another Indian, at Humboldt County, in the State of California, within the limits of the Hoopa Valley Reservation, and it charges Mahawaha, alias Ben, also an Indian, with aiding and

abetting in the murder. The law referred to in the certificate is the last section of the Indian appropriation act of that year, and is as follows: "Sec. 9. That immediately upon, and after the date of the passage of,this act all Indians committing against the person or property of another Indian or other person any of the following crimes, namely, murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny, within any territory of the United States, and either within or without the Indian reservation, shall be subject therefor to the laws of said territory relating to said crimes, and shall be tried therefor in the same courts and in the same manner, and shall be subject to the same penalties, as are all other persons charged with the commission of the said crimes respectivly; and said courts are hereby given jurisdiction in all such cases; and all such Indians committing any of the above-described crimes against the person or property of another Indian or other person, within the boundaries of the United States, and within the boundaries of any state of the United States, and within the limits of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and subject to the same penalties, as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States." The above enactment is clearly separable into two distinct definitions of the conditions under which Indians may be punished for the same crimes as defined by the common law. The first oft hese is where the offense is committed within the limits of a territorial government, whether on or off an Indian reservation. In this class of cases the Indian charged with the crime shall be judged by the laws of the territory on that subject, and tried by its courts. This proposition itself is new in the legislation of Congress, which has heretofore only undertaken to punish an Indian who sustains the usual relation to his tribe, and the offence is committed in the Indian country, or on an Indian reservation, in exceptional cases; as where the offence was against the person or property of a white man, or is some violation of the trade and intercourse regulations imposed by Congress on the Indian tribes. It is new, because it now proposes to punish these offences when they are committed by one Indian on the person or property of another. The second is where the offence is committed by one Indian against the person or property of another, within the limits of a state of the Union, but on an Indian reservation.

In this case, of which the state and its tribunals would have jurisdiction if the offence was committed by a white man outside an Indian reservation, the courts of the United States are to exercise jurisdiction as if the offence had been committed at some place within the exclusive jurisdiction of the United States. The first clause subjects all Indians, guilty of these crimes committed within the limits of a territory, to the laws

of that territory, and to its courts for trial. The second, which applies solely to offences by Indians which are committed within the limits of a state and the limits of a reservation, subjects the offenders to the laws of the United States passed for the government of places under the exclusive jurisdiction of those laws, and to trial by the courts of the United States. This is a still further advance as asserting this jurisdiction over the Indians within the limits of the states of the Union. Although the offence charged in this indictment was committed within a state and not within a territory, the considerations which are necessary to a solution of the problem in regard to the one, must in a large degree affect the other.

The Constitution of the United States is almost silent in regard to the relations of the government which were 'established by it to the numerous tribes within its borders. In declaring the basis on which representation in the lower branch of the Congress and direct taxation should be apportioned, it was fixed that it should be according to numbers, excluding Indians not taxed, which, of course excluded nearly all of that race, but which meant that if there were such within a state as were taxed to support the government, they should be counted for representation, and in the computation for direct taxes levied by the United States. This expression, "excluding Indians not taxed," is found in the Fourteenth Amendment, where it deals with the same subject under the new conditions produced by the emancipation of the slaves. Neither of these shed much light on the power of Congress over the Indians in their existence as tribes distinct from the ordinary citizens of a state or Territory. The mention of Indians in the Constitution which has received most attention is that found in the clause which gives Congress "power to regulate commerce with foreign nations and among the several states, and with the Indian tribes." This clause is relied on in the argument in the present case, the proposition being that the statute under consideration is a regulation of commerce with the Indian tribes. But we think it would be a very strained construction of this clause, that a system of criminal laws for Indians living peaceably in their reservations, which left out the entire code of trade and intercourse laws justly enacted under that provision, and established punishments for the common law crimes of murder, manslaughter, arson, burglary, larceny, and the like, without any reference to their relation to any kind of commerce, was authorized by the grant of power to regulate commerce with the Indian tribes. While we are not able to see in either of these clauses of the Constitution and its amendments any delegation of power to enact a code of criminal law for the punishment of the worst class of crimes known to civilized life when committed by Indians, there is a suggestion in the manner in which the Indian tribes are introduced into that clause, which may ave a bearing on the subject before us. The

commerce with foreign nations is distinctly stated as submitted to the control of Congress. Were the Indian tribes foreign nations? If so, they came within the first of the three classes of commerce mentioned, and did not need to be repeated as Indian tribes. Were they nations, in the minds of the framers of the Constitution? If so, the natural phrase would have been "foreign nations and Indian nations," or, in the terseness of language uniformly used by the framers of the instrument, it would naturally have been "foreign and Indian nations." And so in the case of The Cherokee Nation v. State, brought in the supreme court of the United States, under the declaration that the judicial power extends to suits between a state and foreign states, and giving to the Supreme Court original jurisdiction where a State is a party, it was conceded that Georgia as a State came within the clause, but held that the Cherokees were not a State or nation within the meaning of the Constitution, so as to be able to maintain the suit. 5 Pet. 20. But these Indians are within the geographical limits of the United States. The soil and the people within these limits are under the political control of the government of the United States, or of the States of the Union. There exists within the broad domain of sovereignty but these two. There may be cities, counties, and other organized bodies with limited legislative functions, but they are all derived from, or exist in subordination to, one or the other of these. The territorial governments owe all their powers to the statutes of the United States conferring on them the powers which they exercise, and which are liable to be withdrawn, modified, or repealed at any time by Congress. What authority the State governments may have to enact criminal laws for the Indians will be presently considered. But this power of Congress to organize territorial governments, and make laws for their inhabitants, arises not so much from the clause in the Constitution in regard to disposing of and making rules and regulations concerning the territory and other property of the United States, as from the ownership of the country in which the territories are, and the right of exclusive sovereignty which must exist in the national government, and can be found nowhere else. Murphy v. Ramsey, 114 U. S. 44. In the case of American Ins. Co. v. Canter, 1 Pet. 542, in which the condition of the people of Florida, then under a territorial government, was under consideration, Marshall, Chief Justice, said: "Perhaps the power of governing a territory belonging to the United States which has not, by becoming a State, acquired the means of self-government, may result necessarily from the fact that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whichever may be the source whence the power is derived, the possess

The

ion of it is unquestionable." In the case of U. S. v. Rogers, 4 How. 572, where a white man pleaded in abatement to an indictment for murder committed in the country of the Cherokee Indians, that he had been adopted by and became a member of the Cherokee tribe, Chief Justice Taney said: "The country in which the crime is charged to have been committed is a part of the territory of the United States, and not within the limits of any State. It is true it is occupied by the Cherokee Indians, but it has been assigned to them, and they hold with the assent and under the authority of the United States." After referring to the policy of the European nations and the United States in asserting dominion over all the country discovered by them, and the justice of this course he adds: "But had it been otherwise, and were the right and propriety of exercising this power now open to question, yet it is a question for the law-making and political departments of the government, and not for the judicial. It is our duty to expound and execute the law as we find it, and we think it too firmly and clearly established to admit of dispute, that the Indian tribes, residing within the territorial limits of the United States, are subject to their authority, and when the country occupied by one of them is not within the limits of one of these, Congress may by law punish every offence committed there, no matter whether the offender be a white man or an Indian." Indian reservation in the case before us is land bought by the United States from Mexico, by the treaty of Guadaloupe, Hidalgo, and the whole of California, with the allegiance of its inhabitants, many of whom were Indians, was transferred by that treaty to the United States. The relation of the Indian tribes living within the borders of the United States, both before and since the revolution, to the people of the United States has always been an anomalous one and of a complex character. Following the policy of the European governments in the discovery of America towards the Indians who were found here, the colonies before the revolution, and the United States since, have recognized in the Indians a possessory right to the soil over which they roamed and hunted and established occasional villages. But they asserted an ultimate title in the land itself, by which the Indian tribes were forbidden to sell or transfer it to other nations or peoples without the consent of this paramount authority. When a tribe wished to dispose of its land, or any part of it, or the State or the United States wished to purchase it, a treaty with the tribe was the only mode in which this could be done. The United States recognized no right in private persons, or in other nations, to make such a purchase by treaty or otherwise. With the Indians themselves these relations are equally difficult to define. They were, and always have been regarded as having a semi-independant position when they preserved their tribal relations; not as States, not as nations, not as possessed of the full

attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided. Perhaps the best statement of their position is found in the two opinions of this court by Chief Justice Marshall, in the case of the Cherokee Nation v. Georgia, 5 Pct. 1, and in the case of Worcester v. State, 6 Ib. 536. These opinions are exhaustive; and in the separate opinion of Mr. Justice Baldwin in the former case is a very valuable resume of the treaties and statutes concerning the Indian tribes previous to and during the confederation. In the first of the above cases it was held that these tribes were neither States nor nations, had only some of the attributes of sovereignty, and could not be so far recognized in that capacity as to sustain a suit in the Supreme Court of the United States. In the second case it was said, that they were not subject to the jurisdiction asserted over them by the State of Georgia, which, because they were within its limits, where they had been for ages, had attempted to extend her laws and the jurisdiction of her courts over them. In the opinions in these cases they are spoken of as "wards of the nation," "pupils," as local dependent communities. In this spirit the United States has conducted its relations to them from its organization to this time. But, after an experience of a hundred years of the treaty-making system of government, Congress has determined upon a new departure to govern them by the acts of Congress. This is seen in the Act of March 3, 1871, embodied in § 2079 of the Revised Statutes: "No Indian nation or tribe, within the territory of the United States, shall be acknowledged or recognized as an independent nation, tribę, or power, with whom the United States may contract by treaty; but no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March 3, 1881, shall be hereby invalidated or impaired." The case of Crow Dog, 109 U. S. 556, in which an agreement with the Sioux Indians, ratified by an act of Congress, was supposed to extend over them the laws of the United States and the jurisdiction of its courts, covering murder and other grave crimes, shows the purpose of Congress in this new departure. The decision in that case admits that if the intention of Congress had been to punish, by the United States courts, the murder of one Indian by another, the law would have been valid. But the court could not see, in the agreement with the Indians sanctioned by Congress, a purpose to repeal § 2146 of the Revised Statutes which expressly excludes from that jurisdiction the case of a crime committed by one Indian against another in the Indian country. The passage of the act now under consideration was designed to remove that objection, and to go farther by including such crimes on reservations lying within a State. Is this latter fact a fatal objection to the law? The statute