tion of the present suit by the United States,, considering their Indian lineage, isolated and and on that ground the bill was dismissed. communal life, primitive customs, and limited An appeal was taken to the Circuit Court of civilization, this assertion of guardianship over Appeals which, after outlining the case as them cannot be said to be arbitrary but must just stated, has certified to this court the be regarded as both authorized and controlling." following questions: And also (page 48 [34 S. Ct. 7]): (1) Are Pueblo Indians in New Mexico in such status of tutelage as to their lands in that state that the United States, as such guardian, is not barred either by a judgment in a suit involving title to such lands begun in the territorial court and passing to judgment after statehood or by a judgment in a similar action in the United States District Court for the District of New Mexico, where, in each of said actions, the United States was not a party nor was the attorney representing such Indians therein authorized so to do by the United States? (2) Did the state court of New Mexico have jurisdiction to enter a judgment which *439 would be res judicata as to the United States, in an action between Pueblo Indians and opposed claimants concerning title to land, where the result of that judgment would be to disregard a survey made by the United States of a Spanish or Mexican grant pursuant to an act of Congress confirming such grant to said Pueblo Indians? The status of the Pueblo Indians and their lands, and the relation of the United States to both, were considered in United States v. Sandoval, 231 U. S. 28, 34 S. Ct. 1, 58 L. Ed. 107. We there said (pages 45-47 [34 S. Ct. 5, 6]): "Not only does the Constitution expressly authorize Congress to regulate commerce with the Indian tribes, but long-continued legislative and executive usage and an unbroken current of judicial decisions have attributed to the United States as a superior and civilized nation the power and duty of exercising a fostering care and protection over all dependent Indian communities within its borders, whether within ** 串 its original territory or territory subsequently acquired, and whether within or without the 'It is for that body [Congress], and not for the courts, to determine when the true interests of the Indian re limits of a state. quire his release from such condition of tutelage.' "Of course, it is not meant by this that Con- | gress may bring a community or body of people within the range of this power by arbitrarily calling them an Indian tribe, but only that in respect of distinctly Indian communities the questions whether, to what extent, and for what time they shall be recognized and dealt with as dependent tribes requiring the guardianship and protection of the United States are to be determined by Congress, and not by the courts. "We are not unmindful that in United States v. Joseph, 94 U. S. 614 [24 L. Ed. 295], there are some observations not in accord with what is here said of these Indians, but as that case did not turn upon the power of Congress over them or their property, but upon the interpretation and purpose of a statute not nearly so comprehensive as the legislation now before us, and as the observations there made respecting the Pueblos were evidently based upon statements in the opinion of the territorial court, then under review, which are at variance with other recognized sources of information, now available, and with the long continued action of the legislative and executive departments, that case cannot be regarded as holding that these Indians or their lands are beyond the range of congressional power under the Constitution." While we recognized in that case that the Indians of each pueblo, collectively as a community, have a fee-simple title to the lands of the pueblo (other than such as are occupied under executive orders), we held that their lands, like the tribal lands of other Indians owned in fee under patents from the United States, are "subject to the legislation of Congress enacted in the exercise of the government's guardianship" over Indian tribes and their property. [1] The purpose of Congress to subject the Pueblo Indians and their lands to that legislation, if not made certain before the decision in the Joseph Case, was made so in various ways thereafter. Two manifestations of it are significant. A decision of the territorial court in 1904, holding their lands taxable (Territory v. Delinquent Tax List of Bernalillo County, 12 N. M. 139, 76 P. 307), *441 was promptly followed by a congressional enactment annulling the taxes already levied and forbidding further levies (33 Stat. 1069, c. 1479); and a decision of that court in 1907, construing the statute which prohibits the sale of liquor to Indians and its introduction into the Indian country as not including these Indians or their lands (United States v. Mares, 14 N. M. 1, 88 P. 1128), was shortly followed by an enactment declaring that the statute should be construed as including both (36 Stat. 560, c. 310). It also is of significance that in 1898 Congress provided for the employment by the Secretary of the Interior of a special attorney to represent the Pueblo Indians and protect their interests (30 Stat. 594, c. 545), and that from that time to this a special attorney has been so employed and has been paid out of the appropriations made by Congress for the purpose (42 Stat. 1191, c. 42). "As before indicated, by a uniform course of action beginning as early as 1854 and continued up to the present time, the legislative and executive branches of the government have regarded and treated the Pueblos of *New Mexico as dependent communities, entitled to its aid Many provisions have been enacted by Conand protection, like other Indian tribes, and, | gress-some general and others special-to #440 (46 S. Ct.) It was settled in Lane v. Pueblo of Santa Rosa, 249 U. S. 110, 39 S. Ct. 185, 63 L. Ed. 504, that under territorial laws enacted with prevent the government's Indian wards from "No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution." Comp. St. § 4100. This provision was originally adopted in 1834 (4 Stat. 730, c. 161, § 12), and, with others "regulating trade and intercourse with the Indian tribes," was extended over "the In dian tribes" of New Mexico in 1851. 9 Stat. 587, c. 14, § 7. *443 Mexico-meaning the Indians comprising the community-became a juristic person and enabled to sue and defend in respect of *its lands. But in that case there was no occasion, and no attempt, to determine whether or to what extent the United States would be bound by the outcome of such a litigation where it was not a party. That was a suit brought by the pueblo of Santa Rosa to enjoin the Secretary of the Interior and the Commissioner of the General Land Office from carrying out what was alleged to be an unauthorized purpose and attempt to dispose of the pueblo's lands as public lands of the [2] While there is no express reference United States. Arizona was formed from in the provision to Pueblo Indians, we think part of New Mexico, and when in that way it must be taken as including them. They the pueblo came to be in the new territory it are plainly within its spirit, and, in our opin-retained its juristic status. Beyond establishion, fairly within its words, "any tribe of ing that status, and recognizing that the Indians." Although sedentary, industrious, wardship of the Indians was not an obstacle and disposed to peace, they are Indians in to the suit, the case is without bearing here. race, customs, and domestic government, *al- In the opinion it was said: ways have lived in isolated communities, and "The Indians are not here seeking to estabare a simple, uniformed people, ill-prepared lish any power or capacity in themselves to disto cope with the intelligence and greed of pose of the lands, but only to prevent a threatother races. It therefore is difficult to believe ened disposal of administrative officers in disthat Congress in 1851 was not intending to regard of their full ownership. Of their caprotect them, but only the nomadic and sav-pacity to maintain such a suit we entertain no doubt. The existing wardship is not an obage Indians then living in New Mexico. A more reasonable view is that the term "Indi-stacle, as is shown by repeated decisions of an tribe" was used in the acts of 1834 and 1851 in the sense of "a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular, though sometimes ill-defined, territory." Montoya v. United States, 180 U. S. 261, 266, 21 S. Ct. 358, 359 (45 L. Ed. 521). In that sense the term easily includes Pueblo Indians. *442 this court, of which Lone Wolf v. Hitchcock, With this explanation of the status of the *444 [3] To the first question we answer that Under the Spanish law, Pueblo Indians, the United States is not barred. Our reasons although having full title to their lands, were will be stated. The Indians of the pueblo regarded as in a state of tutelage, and could are wards of the United States, and hold alienate their lands only under governmental their lands subject to the restriction that the supervision. See Chouteau v. Molony, 16 same cannot be alienated in any wise withHow. 203, 237, 14 L. Ed. 905. Text-writers out its consent. A judgment or decree which have differed about the situation under the operates directly or indirectly to transfer the Mexican law; but in United States v. Pico, lands from the Indians, where the United 5 Wall. 536, 540, 18 L. Ed. 695, this court, States has not authorized or appeared in the speaking through Mr. Justice Field, who was suit, infringes that restriction. The United specially informed on the subject, expressly States has an inter*est in maintaining and recognized that under the laws of Mexico the enforcing the restriction, which cannot be afgovernment "extended a special guardianfected by such a judgment or decree. This ship" over Indian pueblos, and that a convey-court has said in dealing with a like situaance of pueblo lands, to be effective, must be made "under the supervision and with the approval" of designated authorities. And this was the ruling in Sunol v. Hepburn, 1 Cal. 254, 274 et seq. Thus it appears that Congress, in imposing a restriction on the alienation of these lands, as we think it did. was but continuing a policy which prior gov ernments had deemed essential to the protection of such Indians. tion: "It necessarily follows that, as a transfer of the allotted lands contrary to the inhibition of Congress would be a violation of the governmental rights of the United States arising from its obligation to a dependent people, no stipulations, contracts, or judgments rendered in suits to which the Government is a stranger, can affect its interest. The authority of the United States to enforce the restraint lawfully 564 created cannot be impaired by any action without its consent." Bowling & Miami Investment Co. v. United States, 233 U. S. 528, 534, 34 S. Ct. 659, 660 (58 L. Ed. 1080). And that ruling has been recognized and given effect in other cases. Privett v. United States, 256 U. S. 201, 204, 41 S. Ct. 455, 65 L. Ed. 889; Sunderland v. United States, 266 U. S. 226, 232, 45 S. Ct. 64, 69 L. Ed. 259. [4] But, as it appears that for many years the United States has employed and paid a special attorney to represent the Pueblo Indians and look after their interests, our answer is made with the qualification that, if the decree was rendered in a suit begun and prosecuted by the special attorney so employed and paid, we think the United States is as effectually concluded as if it were a party to the suit. Souffront v. Compagnie des Sucreries, 217 U. S. 475, 486, 30 S. Ct. 608, 54 L. Ed. 846; Lovejoy v. Murray, 3 Wall. 1, 18, 18 L. Ed. 129; Claflin v. Fletcher (C. C.) 7 F. 851, 852; Maloy v. Duden, 86 F. 402, 404, 30 C. C. A. 137; James v. Germania Iron Co., 107 F. 597, 613, 46 C. C. A. 476. [5] Coming to the second question, we eliminate so much of it as refers to a possible disregard of a survey made by the United States, for that would have no bearing on the court's jurisdiction or the binding effect of the judgment or decree, but would present only a question of whether error was committed in the course of exercising jurisdiction. With that eliminated, our answer to the question is that the state court had jurisdiction to entertain the suit and proceed to judgment or decree. Whether the #445 *outcome would be conclusive on the United States is sufficiently shown by our answer to the first question. Questions answered as stated in this opin ion. (271 U. S. 472) CHICAGO, M. & ST. P. RY. CO. v. COOGAN. 4. Courts 3972, New, vol. 9A Key-No. Series-On certiorari in action under federal Employers' Liability Act, Supreme Court will examine record, and reverse judgment, if evidence is insufficient as matter of law to show negligence (Comp. St. §§ 8657-8665). On writ of certiorari to review judgment of state court in action under federal Employers' Liability Act (Comp. St. §§ 8657-8665), Supreme Court will examine record, and, if it finds evidence insufficient as a matter of law to sustain findings of carrier's negligence, will reverse judgment against it. 5. Master and servant 276(6). Evidence held insufficient to show negligence in maintaining air line along track caused or contributed to death of brakeman. 6. Evidence 53. Circumstances relied on to prove a fact must be proved, and cannot be presumed. 7. Trial 142. Trial judge should direct verdict, when tes timony and all inferences which jury reasonably may draw therefrom are insufficient to support a different finding. On Writ of Certiorari to the Supreme Court of the State of Minnesota. Action by Edith F. Coogan, as special administratrix, etc., against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff was affirmed by the Supreme Court of the State of Minnesota (160 Minn. 411, 200 N. W. 477), and defendant brings certiorari. Reversed. Messrs. A. C. Erdall and F. W. Root, both of Minneapolis, Minn., for petitioner. Messrs. T. D. Sheehan, of St. Paul, Minn., and Lyle Pettijohn, of Blue Earth, Minn., for respondent. 473 *Mr. Justice BUTLER delivered the opinion of the Court. Petitioner is an interstate carrier by railroad. William Coogan came to his death at (Argued April 26, 1926. Decided June 1, 1926.) Farmington, Minn., July 14, 1923, while em No. 268. 1. Commerce 8(6). Federal Employers' Liability Act (Comp. St. §§ 8657-8665) supersedes state laws affecting employers' liability to employees in interstate transportation by rail. 2. Master and servant 96(1). Employer is liable for injury or death resulting in whole or in part from negligence specified in federal Employers' Liability Act (Comp. St. §§ 8657-8665). 3. Commerce 8(6). Kind or amount of evidence required to establish liability under federal Employers' Liability Act (Comp. St. §§ 8657-8665) is not subject to control by states. ployed as a brakeman on one of its interstate trains. Respondent brought this action in the district court of Dakota county in that state under the federal Employers' Liability Act, approved April 22, 1908 (35 Stat. 65, c. 149 [Comp. St. §§ 8657-8665]), to recover damages for the benefit of the widow and children of the deceased. At the close of all the evidence, petitioner moved the court to direct a verdict in its favor on the ground, among others, that respondent had failed to prove any actionable negligence on the part of pettioner, and that any verdict for respondent would be based upon speculation and conjecture. The motion was denied, and there was a verdict for respondent. A motion for judgment in favor of petitioner notwithstanding the verdict was overruled. Judgment for re For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (46 S. Ct.) spondent was given by the trial court, and, on pled to the others. And then three or four appeal, it was affirmed in the highest court cars-making up all that were to go in the of the state. 160 Minn. 411, 200 N. W. 477. | train-were moved east on that track atThe case is here on writ of certiorari. Section 237, Judicial Code (Comp. St. § 1214). Petitioner contends that the evidence is not sufficient to sustain a finding that any negligence on its part caused or contributed to cause the death. *474 car. tached to the engine until they came into contact with the cars already there. Then the engine was stopped to discover whether the coupling made. It was found that it had, and, in order to clear the switch, the engine moved all the cars east about two car lengths -66 to 80 feet. Then the switch engine was [1-4] *By the federal Employers' Liability detached. Immediately the road engine came Act, Congress took possession of the field of and was coupled to the cars. The air hose employers' liability to employees in interstate was coupled between the engine and the first transportation by rail, and all state laws upBut it was found that the air line was on that subject were superseded. Second open at some other place. The brakeman of Employers' Liability Cases, 223 U. S. 1, 55, the switch crew walked east along the south 32 S. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. side of the train and coupled the hose at the S.) 44; Seaboard Air Line v. Horton, 233 U. east end of the last cut that was set in. AftS. 492, 501, 34 S. Ct. 635, 58 L. Ed. 1062, L. er that, and while going toward the rear he R. A. 1915C, 1, Ann. Cas. 1915B, 475. The found the body of deceased. It was near the rights and obligations of the petitioner de west end of the second car from the caboose, pend upon that act and applicable principles and was lying parallel with the track, outside of common law as interpreted by the federal the south rail and on or at the ends of the courts. The employer is liable for injury or ties. There were indications on the ground death resulting in whole or in part from the sufficient to show that he had been between negligence specified in the act and proof of the rails of the track, that he had been run such negligence is essential to recovery. The over by the east truck of the car next to the kind or amount of evidence required to es- caboose, that his left leg and left arm had tablish it is not subject to the control of the been crushed between wheel and rail, and several states. This court will examine the that his body had been dragged about 15 feet. record, and if it is found that, as a matter of There was evidence to support respondent's law, the evidence is not sufficient to sustain contention that it was the duty of deceased a finding that the carrier's negligence was a to couple the air hose, and that prior to the cause of the death, judgment against the car-accident all couplings had been made, except rier will be reversed. St. L., Iron M. & S. Ry. v. McWhirter, 229 U. S. 265, 277, 33 S. Ct. 858, 57 L. Ed. 1179; New Orleans & N. E. R. R. Co. v. Harris, 247 U. S. 367, 371, 38 S. Ct. 535, 62 L. Ed. 1167; New Orleans & N. E. R. R. Co. v. Scarlet, 249 U. S. 528, 39 S. Ct. 369, 63 L. Ed. 752. [5] Petitioner's train 92 was made up at the Farmington yard by a switch crew shortly after 7 o'clock in the morning. Deceased was the rear brakeman of the road crew which was to take the train to Austin. He was killed before the train was ready to start. There was no eyewitness, and the case depends on circumstantial evidence. The tracks in the yard run east and west. The most northerly is the main line track, and, commencing with that one, the others are numbered consecutively 1, 2, 3, etc. Cars were taken from other tracks and put upon track 1 to make up the train. The caboose was kicked-that is that made by the brakeman of the switch crew and the one at the caboose. 12 inches south of the south rail of the track, The breach of duty relied on is this: About and fastened to the ties by clamps and spikes, *476 there was an air pipe line ex*tending about 800 feet. It was installed three or four years before the accident. At the time of the accident, a stretch of the pipe line about 15 feet in length had been loosened and bent 3 or 4 inches toward the rail and upward leaving a space of from 31⁄2 to 4 inches between it and the ties. It had been in that condition for some months. The evidence is sufficient to warrant a finding that there was a breach of duty in this respect. But the precise question for decision is whether the condition of the pipe caused or contributed to cause the death of deceased. The east end of the detached from the engine in motion and sent part so loosened and bent was about 15 feet west of the place where the body of deceased by momentum-east to a place where it was was found. Respondent argues that a brakestopped by deceased, who rode and controlled man, going in from the south side to couple it by hand brake. Two cars were in like the hose between the caboose and rear car, manner put upon that track. They were controlled by a brakeman of the switch crew at with his right foot, leaving his left foot benaturally would step inside the south rail the hand brake on the east *car, which coupled tween the rail and the air pipe line. As to automatically to the caboose. Deceased was that the evidence is in conflict, but it will be then standing on the ground beside the ca- taken to be sufficient to sustain the contenboose. That was the last time he was seen tion. The shoes worn by deceased at the time before the accident. Similarly nine or ten of the accident were received in evidence. more cars were sent east on track 1, and un- The outside of the counter of the left shoe der control of the same brakeman were cou- was scratched, and showed a marked round *475 ing depression parallel with the sole and just | depression might have been made by the bent above the heel. This condition was first noticed some days after the accident. In the meantime the shoes had been left in a garage and no attention was given to them. The depression in the counter was not so clear at the trial as when first noticed. The foregoing indicates the substance of all the evidence bearing on the cause of death. [6] The case was tried, and respondent supports the judgment, on the theory that, when the switch engine stopped after the last coupling, deceased went between the caboose and car to couple the air hose; that he step ped between the rails with his right foot, leaving his left foot outside the south rail and between it and the pipe line; that, stooping to reach the air hose his left foot slipped *477 pipe, it cannot be said that they constitute any reasonable support for a finding that it was so made. And, assuming that the depression on the shoe counter was made by contact with the bent pipe, there is nothing to indicate whether it was made at the time deceased was knocked down, or later while he was being dragged. But there is nothing to show that the pipe had any connection with the accident. The fact that deceased was run over and killed at the time and place disclosed has no tendency to show that his foot was caught. One between cars coupling the air hose is very liable to be run over, if the train is unexpectedly moved. A finding that his foot was not caught under the pipe is quite as consistent with the evidence as a finding that it was. back*ward under the bent pipe; that, before [7] It is the duty of the trial judge to dihe had time to make the coupling, the cars were started backward in the movement to rect a verdict for one of the parties when the clear the switch; that, when he attempted to testimony and all the inferences which the straighten up, his left foot was caught under jury reasonably may draw therefrom would the pipe, and he was forced backward, run be insufficient to support a different finding. over, and killed. It follows that, unless the Baltimore & Ohio R. R. Co. v. Groeger, 266 evidence is sufficient to warrant a finding U. S. 521, 524, 45 S. Ct. 169, 69 L. Ed. 419. that the death resulted from the catching of When the evidence and the conclusions which deceased's left foot under the bent part of the a jury might fairly draw from the evidence pipe line the judgment cannot be sustained. are taken most strongly against the petitionAs there is no direct evidence, it is necessary er the contention of respondent that the bent to determine whether the circumstances are pipe caused or contributed to cause the death sufficient to warrant a finding of that fact. is without any substantial support. The recWhenever circumstantial evidence is relied ord leaves the matter in the realm of specuon to prove a fact, the circumstances must lation and conjecture. That is not enough. be proved and not themselves presumed. Pawling v. United States, 4 Cranch, 219, 221, United States v. Ross, 92 U. S. 281, 284, 232 L. Ed. 601; Patton v. Texas & Pacific RailL. Ed. 707; Manning v. Insurance Co., 100 U. S. 693, 698, 25 L. Ed. 761. Assuming it was the duty of deceased to couple the air hose, it was necessary for him to go between the cars to do so. He was standing by the caboose when the first cut came in. The air hose coupling might have been made then or at any time after that. It was not made, and it is left to be inferred that he postponed effort in that direction until after all the switching had been done and until the engine had hold of the string of cars. And then it must be inferred that he went between the cars in the manner claimed-his right foot between the rails, leaving his left foot outside, where, it is argued, it was caught under the bent pipe. The "rounding depression" on the counter of the shoe is not sufficient to bridge the hiatus in the evidence. It is not shown when or how that depression was made. The condition of the shoe before the accident is not disclosed. A number of days elapsed before it was noticed, and it is not shown that in the meantime care was taken to keep it in the same condition or that the depression was not made after the accident. Even if the appearance of the shoe and other circumstances 478 are sufficient to *justify an inference that the way Co., 179 U. S. 658, 663, 21 S. Ct. 275, 45 L. Ed. 361; Looney v. Metropolitan Railroad Co., 200 U. S. 480, 488, 26 S. Ct. 303, 50 L. Ed. 564; St. L. & Iron Mtn. Ry. Co. v. McWhirter, supra, 282 (33 S. Ct. 858); St. Louis-San Francisco Ry. v. Mills, 271 U. S. 344, 46 S. Ct. 520, 70 L. Ed. 979, decided May 24, 1926. Judgment reversed. (271 U. S. 494) RAFFEL v. UNITED STATES. (Submitted May 4, 1926. Decided June 1, I. Witnesses 1926.) No. 307. 305 (2). Immunity from giving testimony is one which defendant may waive by offering himself as a witness. 2. Witnesses 277(1)-Defendant, on taking stand in his own behalf, does so as any other witness, and may be cross-examined, within limits of appropriate rules. When defendant takes the stand in his own behalf, he does so as any other witness, and within the limits of appropriate rules he may be cross-examined as to the facts in issue. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexe |